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Lamoine Board of Appeals

Minutes of August 16, 2006

(Draft - subject to revision)

Chairman Chris Tadema-Wielandt called the meeting to order at 7:28 PM.

Present were: Board of Appeals members Hancock “Griff” Fenton, Warren Craft , Chris Tadema-Wielandt, Jay Fowler, Reginald McDevitt, John Wuorinen (arrived at 7:33 PM), Secretary Stu Marckoon, Appellants James Tweedie, Gordon Williams, Attorney for the Appellants, Peter Roy, Planning Board members Melody Havey , Cece Ohmart , Michael Jordan and Cable TV operator Merle Bragdon.

Consideration of Minutes of July 25, 2006: Mr. Fenton submitted a minor correction in writing. Mr. McDevitt moved to approve the minutes as corrected. Mr. Fowler 2 nd . Vote in favor was unanimous.

The meeting recessed briefly until Mr. Wuorinen arrived and resumed at 7:35 PM

Gordon Williams, Trustee vs. Lamoine Planning Board

Attorney Peter Roy said he sent a letter to the Appeals Board and apologized that it only arrived yesterday. He said he attempted to outline the history of the existence and use of the cabin next to the Tweedie home. He said Mr. Tweedie is a life-long resident of Lamoine. He said the cabin was built in the 1930's and stood until its replacement was begun. He said the posts for the original cabin are in the same place.

Mr. Roy said Mr. Tweedie's daughter had lived in the cabin full-time recently. He said the Tweedies had contacted Lawrence Young and assumed he knew the process regarding building permits. He said a complicating factor was that Mr. Tweedie's wife fell ill and passed away last year. He said once Mr. Young started the project it was determined the cabin was not worth fixing, so they decided to build a new cabin on the same posts. He said Mr. Young believed that if it were built on the same posts, it would not require a permit. He said Mr. Tweedie assumed that Mr. Young knew what he was doing.

Mr. Roy said the old cabin had been hooked up to the septic system since the 1970's. He said the old leach field had been behind the cabin for 30-years. He said the cabin had always been used year round. He said a teacher once rented it for a full year, and Mr. Tweedie's son stayed in the cabin in the winter. Mr. Roy introduced Gordon Williams to the Appeals Board. He said Mr. Williams holds the title to the property as a trustee for Mr. Tweedie's trust. He said Mr. Williams has often stayed in the camp.

Mr. Roy said Mr. Tweedie was not trying to conceal anything from the town. He said the assumption was that made that they were not doing anything that required a permit. He said the septic system failed in the 1990's, so Joseph Brochu designed a new system that was approved by then plumbing inspector Sally Bell in 1995. He handed the Appeals Board copies of the septic permit that showed a 5-bedroom system.

Mr. Roy said the matter first came to the attention of the enforcement authorities when Terry Towne was passing by. He referred to a statement from Mr. Towne saying that he had been on the Tweedie property thousands of times. Mr. Roy said Code Enforcement Officer Dennis Ford visited the Tweedie property and realized no permit was issues, so he issued a notice of violation and stop work order. He said Mr. Ford approached the matter as there being a screw up and that the project needed a permit under the scrutiny of the planning authorities. Mr. Roy read from the report Mr. Ford wrote, saying relocation would result in disturbance, while leaving it where it is wouldn't.

Mr. Roy said when the stop work order was issued, the project stopped and nothing had changed. He said the letter from Mr. Ford said to apply to the Planning Board for permits and to enter negotiations with the Board of Selectmen for a consent agreement. He said in a perfect world, they would not be here, but in a semi-perfect world, they are here, and he's trying to find some way to not abuse the ordinance and allow Mr. Tweedie to finish the cabin without harming the environment.

Mr. Roy said the Planning Board meeting a few weeks ago ended up like a geometry class. He said he contacted surveyor Eric Allen and asked him to measure things. He said that report was included in the materials given to the Appeals Board this evening. He said Mr. Allen's calculations were different than what the Planning Board came up with. Mr. Roy said he also did calculations for volume and area and he was surprised to find that the 30% expansion limits could be met according to Mr. Allen's calculations. He said the measurements may be nit picking, but it may take nitpicking to comply. He said he submits this structure falls within the 30% expansion allowed by state Shoreland zoning.

Mr. Roy said this has been very disconcerting to Mr. Tweedie who once sat on the Planning Board . He said there was never any intent to do other than what is appropriate. He said he didn't think there was any damage done to the ordinance and what is there is consistent with the ordinance and state statutes. He said the dimensions are close and some might be able to be removed. He referred to a letter from Richard Baker of the DEP that said the loft area could be reconfigured. He said he believed they meet the 30% figure.

Mr. Roy said Mr. Tweedie acknowledges proceeding without a permit and he knows a consent agreement must be reached and it was inappropriate to proceed without a permit. He said the next step would appear to be to meet with the Selectmen and figure an appropriate penalty. He said at the previous meeting he thought he would have to grovel before the Appeals Board, but with Mr. Allen's measurements, he thinks an appeal should be granted and the penalty phase handled by the Selectmen.

Chairman Tadema-Wielandt said Mr. Roy said there was no significant violation of the ordinance, except the literal reading of Shoreland Zoning Ordinance section 12-C-1 states that “ A non-conforming structure may be added to or expanded after obtaining a permit …” Mr. Roy said “Guilty as charged”.

Chairman Tadema-Wielandt said Mr. Roy provided the Appeals Board with a 1995 law court decision regarding after the fact permits. Mr. Roy said he conferred with his partners in regard to after the fact permits. He said he sent the town that case, but couldn't find an exact match. He said there are thousands of licenses and permits issued in Maine , and there are cases where people blatantly disregarded getting a permit. He said local and state boards are frequently asked to issue after the fact permits. He said it happens frequently and is recognized by the courts. He said he's been involved in several cases, and they're a fact of life.

Chairman Tadema-Wielandt said he didn't doubt that, but asked if the Lamoine ordinance permits after the fact permits. He said the ordinance does refer to after obtaining a permit. He said one of the thrusts of the Appeals Board decision has to look at the language of the ordinance.

Mr. Fowler said he took offense to Mr. Roy's reference to the measurements being taken at the Planning Board meeting. He said he knows he can figure cubic feet. Mr. Roy said he apologized for that characterization. Mr. Fowler said when Mr. Tweedie's daughter made the application she said the setback was 80-feet. He said the Code Enforcement Officer measured the setback at 24-feet. He said the Board asked for a licensed surveyor to show the setbacks, and he couldn't find those. Mr. Roy said he thought that was part of the record. He produced a copy of the site plan and showed it to the Appeals Board. Chairman Tadema-Wielandt noted the plan is part of the record. There was a brief pause in discussion to measure the setback on the plan from the retaining wall.

Mr. Fowler asked if the project is just a cabin, or is a deck included. Mr. Roy said the proposal is for nothing but a cabin. Mr. Fowler said his wife and Mr. Towne went to the property for tax assessment purposes. He said if the cabin were to get a porch, it would be closer than 50-feet to the high water mark. Mr. Williams said the only thing that would be added would be steps to get into the cabin. He said steps were there before. Mr. Roy said there was a deck there before. Mr. Williams said the deck was about big enough to set a chair on. Mr. Roy noted there is only a plank being used now to access the cabin. Mr. Fowler asked if there were no deck proposed. Mr. Roy said there was no deck proposed, just a way to get into the house. A short, informal discussion followed.

Chairman Tadema-Wielandt said the plan shows the building is in the flood plain, but the lowest floor is more than a foot above the required elevation. He asked Ms. Havey of the Planning Board if the Planning Board made a determination in regard to the flood zone. Ms. Havey replied there was no finding made. Chairman Tadema-Wielandt asked Ms. Havey if she recalled addressing that. Ms. Havey said the floodplain was shown on the map, but the Planning Board did not make any specific ruling on the map. Chairman Tadema-Wielandt said there are means of getting out of the flood zone. Ms. Havey said that requires an affirmative action by the property owner. She stated again the Planning Board made no determination. Mr. Fowler said they would need 18-feet of elevation. Mr. Craft asked what the requirement was. Mr. Fenton said they would have to look in the ordinance. Mr. Roy said when the floodplain maps were first developed, they were hideously inaccurate. Mr. Craft asked if the property ahs ever been flooded. Mr. Tweedie replied “no”. Mr. Roy said that area is about the highest spot on the peninsula. Mr. Fowler said he did an addition on the property next door and it was out of the floodplain, and the Tweedie lot looked higher.

Mr. Fenton said Gordon Donaldson of the Planning Board had a conversation with Mr. Tweedie. He referred to a letter submitted as part of the record. Mr. Roy said that was Christmas Party talk. Mr. Fenton asked of Mr. Donaldson mentioned that a permit was needed. He said he was unsure if the letter said anything about the project requiring a permit. Ms. Havey said she didn't think anyone would want to be held to comments made at a social function. Mr. Fenton said he was merely asking if the issue of obtaining a permit was brought up. He said sometimes people take a conversation as something they could go by. Chairman Tadema-Wielandt said the law court has ruled, in a case from Cape Elizabeth , that a comment at a social function is not something they cold rely. Mr. Roy said by Christmas the Tweedies had started the project. Mr. Fenton said he was just curious if needing a permit was mentioned. Mr. Craft said he wondered if Ms. DeTuede had taken Mr. Donaldson's comment seriously. Mr. Fowler said the project started sometime in November.

Chairman Tadema-Wielandt asked Mr. Williams about his familiarity with the old cabin. He said there was some discussion in the file about the size of the logs. Mr. Williams said it was based on many years of short visits and staying in the cabin. He said it was based on the observation of the floor layout. He said there was more than ample space for the four members of his family. Chairman Tadema-Wielandt said there is a graphic representation in Mr. Allen's new exhibit showing an approximate 12-inch log and going up to substantially smaller. Mr. Williams said the floor was laid at a joint between the two logs, not the widest point of the logs.

Mr. Williams said at the time the work started to repair the cabin, three trees fell and punctured the roof. He said when the repairs started, the more they got into it, the more they realized more work had to be done. Chairman Tadema-Wielandt asked what the diameter of the logs is in the new structure. Mr. Williams said they're narrower, it's part of a manufactured kit. Chairman Tadema-Wielandt asked who's kit it was. Mr. Tweedie said Dick King. Chairman Tadema-Wielandt said Mr. King was not involved in the construction.

Mr. Fenton asked if Mr. Williams ever found a picture of the old cabin. Mr. Williams said he looked through volumes of pictures and could find nothing clear because it was so dark.

Chairman Tadema-Wielandt asked Mr. Roy if he had discussed with Mr. Young whether he made measurements of the old structure. Mr. Roy said he had not asked Mr. Young. He said he looked at the cabin earlier today and it sits on the old posts.

Chairman Tadema-Wielandt said he wished an assessor was present. A discussion followed on the various notations on the property cards. Mr. Marckoon ran down each card, and noted the new structure is noted as 17' x 24' as opposed to the original cabin's 18' x 24' configuration.

Mr. Fowler said looking at the letter from Richard Baker of the DEP, it gives how volume is determined by measuring the exterior walls. The volume calculation was discussed at length. Ms. Havey said she agreed the volume was calculated by using the exterior and the area is measured from the interior walls. Mr. Fowler said when his company seeks a permit for a 28x30 building, the dimensions are taken from the outside. He said if use the inside of the walls for the area, you lose about a foot. Ms. Havey said if you're doing two buildings, you have to do it consistently. A short discussion followed between Mr. Fowler and Ms. Havey on how to measure floor footage and volume.

Chairman Tadema-Wielandt said you can't count floor area and volume the same way. A discussion followed on determining the floor area. Ms. Havey said the measurements were done with the evidence given to the Planning Board the night of the hearing. She said when she went back and did the calculations with the assumptions, it came out the same way. She said if the wrong information was given, that's what was calculated. Mr. Roy said there was a room full of people trying to figure the volume and square footage. He said that's why he called Mr. Allen. He said no one anticipated that it would be that close. Ms. Havey said the issue was that they didn't have information on the whole building. Mr. Williams said someone picked up that there was a 10-foot high way. Ms. Havey said there was a notation that it was a 7-foot high side wall. Ms. Havey said Ms. DeTuede said there was no way it was only a 7-foot wall. She said the 8-foot sidewall was used, and that increased the base volume in favor of the application. Mr. Fowler said the property card said it was a 7-foot wall, so the Planning Board gave the applicants the benefit of the doubt.

Chairman Tadema-Wielandt asked if the volume was calculated using the exterior of the building. Ms. Havey said that is correct and it was done according to the ordinance. Chairman Tadema-Wielandt said it was essential to have Mr. Young and Mr. Ford present and one of the assessors. He said the reason an assessor goes to the property is to see and make note of what's there. He said to some extent the findings are reflected in the property cards that area prepared. Mr. Williams asked if there was an error in Mr. Towne's statement that it was a flat roof. Ms. Havey said the Planning Board did not use a flat roof as a calculation. Mr. Williams said Mr. Towne might have seen the building when the roof was taken off due to damage. Mr. Fowler said he was trying to find the documents that compared the roof pitch on the old and new buildings. A discussion followed on how to determine the volume.

Chairman Tadema-Wielandt said the appellants have an engineer who's determined the volume. Mr. Fowler said Ms. DeTuede claimed she could vacuum in the roof area. Mr. Williams said Ms. DeTuede stated she could not reach the roof with a broom. A short discussion followed.

Mr. Craft asked about the living area and whether that's the floor area. Chairman Tadema-Wielandt said that's determined from the interior walls. Ms. Havey said if there is one story and a loft were added, that 2 nd floor square footage would have to be added to the floor area. Mr. Roy said Mr. Allen used the figures from the planning board on the old building and was satisfied. He said the calculation of a 23.5% increase is from using the Planning Board calculation. Ms. Havey said that was not how the Planning Board got their volume. She said the numbers on the new application are not accurate, and they're not what Mr. Ford had measured.

Mr. Roy said Mr. Tweedie said he wanted to build a deck for the cabin and someone told him not to attach it. Chairman Tadema-Wielandt said you can't get the percentage of increase unless you know what the original cabin was. A short discussion followed on who had seen the old building. Ms. Havey said there is no other evidence to say what the size of the old building was. Mr. Roy said the surveyor accepted the Planning Board dimensions on the old building. Ms. Havey said the surveyor is saying new calculations of the new building are smaller than what the Planning Board determined. Mr. Roy said the new building is 24 square feet smaller, using the assessor calculations. Mr. Fowler read the dimensions from a letter from Ms. DeTuede that is part of the record.

Michael Jordan said what puts the building into violation is the loft. He asked if the loft could be removed and get under the 30% increase. He said the entire problem is square footage. Mr. Fowler showed the picture of the new cabin and said a dormer adds more volume. Chairman Tadema-Wielandt asked what building Mr. Allen used. He said the report from Mr. Allen called it an A-Frame roof. A short discussion followed on the dormer area. Mr. Roy said he didn't know if the loft is part of the structural integrity of the building. Chairman Tadema-Wielandt said there was some mention of the removal of the loft. Mr. Roy said the report said certain pieces of the loft could be removed to cut down on the square footage. A short discussion followed regarding loft removal.

Mr. Wuorinen said his quick arithmetic comes up with a 355 cubic foot increase in volume. He said 323 cubic feet would be allowed. He said a difference of 30 cubic feet in volume is negligible. Mr. Fowler said the plans in the packet are confusing. He said the application was written by Ms. DeTuede. Mr. Roy noted that if one climbs the stairs, the roof is very low at the upper landing. Mr. Williams said the loft is good for a kid to sleep in, but no one bigger. He said there is no deck on the front of the building. He said the application was what Ms. DeTuede was hoping for instead of what was there. Mr. Jordan said the loft might not be in compliance with state codes.

Mr. Fowler said the building was complete replaced in an illegal manner. He said it's not supposed to be torn down. Mr. Williams said it was torn down in stages. Mr. Fowler said he should have stopped the project and gotten a permit. He said the two sides are bickering over square footage, and the point he's trying to make is the building was completely replaced. He said the Appeals Board dealt with a similar issue in the Larson case. Ms. Havey said the problem with the Larson case was that more than a year had passed. She said the Planning Board gets to say if they can expand by 30%.

Chairman Tadema-Wielandt said if the Planning Board calculation is used, that's 352 square feet, and 30% additional works out to 457.6 square feet. He said Mr. Allen's calculation shows the new structure has 525 square feet. A short discussion followed on how to figure percentages. Chairman Tadema-Wielandt said the statute says 30%, and the Board of Appeals cannot make that any different, because there would be no point to the statute.

Chairman Tadema-Wielandt said there is not much disagreement on the dimensions of the old structure. Mr. Fowler said the letter from Mr. Roy indicated that a licensed plumber and electrician worked on the new structure. He said they didn't take out any permits. Mr. Marckoon said there is no electrical permit issued locally, but plumbing permits are, and to his knowledge no internal plumbing permit was sought or issued. Chairman Tadema-Wielandt asked if there is no dispute on the old structure, is there evidence that the Planning Board made a mistake in its decision. Mr. Fenton said that goes to their findings of fact.

Mr. Roy said in the confusion of the Planning Board 's final meeting. He said they have some empirical evidence to the size of the new structure. He said Mr. Allen accepted the figure reached by the Planning Board , and the dimensions in terms of area are supported by the old tax card. He said when he did his calculations, the figures were ridiculously close, and they looked too slick, so there was a suggestion to take part of the loft out. He said it seems the numbers work. Chairman Tadema-Wielandt said it's not in the Appeals Board purview to make that determination. He said the Appeals Board can either find the Planning Board made a mistake and remand the case back to them, or the Appeals Board could find the Planning Board made no mistake. Mr. Marckoon said a third option would be to find that the Planning Board was correct and the appellants could resubmit an accurate application to the Planning Board . Ms. Havey agreed a resubmission is possible.

The meeting recessed for approximately 9-minutes, resuming at 9:16 PM

Chairman Tadema-Wielandt asked if there was further response to his suggestion that the Appeals Board would have to determine whether the Planning Board erred. Mr. Roy said there is information available now that was not available for the Planning Board . He said a remand is something it could do, and the Appeals Board make a finding with the facts we have now. Mr. Craft said the old figures are a guess. Mr. Roy said they have to live with the numbers the Planning Board agreed to. Ms. Havey asked what that would gain. She asked if the Appeals Board says “No, there was no mistake”, they still have to go before the Selectmen in the penalty phase. She said the Planning Board has no say in the penalty phase. Chairman Tadema-Wielandt asked at what stage a new application could be made. Ms. Havey said she didn't know. She said the Selectmen have the ability to direct the appellants to go back before the Planning Board . She said the after-the-fact question has not been challenged yet. Mr. Roy said the law court case could have said there is no such thing as an after the fact permit, but they accepted it as a fact of life. Ms. Havey said the permit would have to be in compliance. She said the Planning Board has no right to grant an after the fact permit that doesn't meet the statute. Chairman Tadema-Wielandt said a DEP permit is different from a locally issued permit. Mr. Roy said in the past 25-to-30 years he's been involved in after the fact permits about 25-times. Ms. Havey noted the Appeals Board has recently handled an after-the-fact case (Pettegrow). Chairman Tadema-Wielandt asked if the Selectmen have the right to alter that which the town meeting has approved.

Mr. Wuorinen asked if the Appeals Board could support a motion that the Planning Board did not err, and he would so move. Mr. Fowler 2 nd . Mr. Fenton said the issue of an after the fact permit is not defined in any ordinance. He said that's an interesting dilemma. He said whether they exceed square footage or volume, and it might be as simple that there was no permit so it's not permitted. He asked who has authority to give an after the fact permit. He said there are lots of issues that are not defined, and that's a problem for him. He said he sees after the fact permits happen in every community. A short discussion followed.

Chairman Tadema-Wielandt said he would like the word the motion as follows: that the appellant has not provided sufficient evidence that will allow this board to find that the Planning Board clearly erred in not issuing the requested permit. There was no objection to that wording change. The Appeals Board voted unanimously in favor of the motion as stated by the Chairman.

Chairman Tadema-Wielandt asked if there was any other business. Mr. Wuorinen apologized for his late arrival.

Mr. Wuorinen moved to adjourn the meeting at 9:30 PM. Mr. Fowler 2 nd . Vote in favor was unanimous.

Respectfully submitted,

Stuart Marckoon, Secretary

Lamoine Board of Appeals

This audio and video of this meeting was recorded on DVD. The above minutes do not purport to be a transcript of the meeting, merely a summary of the action. The DVD recording is available for review at the Lamoine Town Hall .