Town of Lamoine, Maine
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Board of Appeals
Minutes of September 20, 2010
Chairman Hancock “Griff” Fenton called the meeting to order at 7:00 PM
Present were: Board of Appeals members John Wuorinen, Hancock “Griff” Fenton, Jay Fowler, Merle Bragdon; Secretary Stu Marckoon, Assessor & Deputy Code Enforcement Officer Michael Jordan, Code Enforcement Officer Dennis Ford, Appellant Robert Seibel, and Errol and Ionia Heisser.
Minutes – August 9, 2010 – Mr. Wuorinen moved to approve the minutes as written. Mr. Fowler 2nd . Vote in favor was 4-0.
Seibel vs. Lamoine Code Enforcement Officer
Chairman Fenton opened the hearing at approximately 7:04 PM. He summarized the case as follows:
Michael Jordan asked for a clarification that he was acting as an Assessor not as the Deputy Code Enforcement Officer when he made the complaint. Chairman Fenton said he was not aware of that, and noted the difference. Chairman Fenton then opened the floor to the appellant.
Robert Seibel (the appellant) thanked the Board for accommodating his request to extend the timing. He said two years ago it was discovered that the existing boat house on his property was in terrible shape. He said there were holes in the roof, and he investigated what it would take to repair the building. He said he hired Breakwater Design and Build to strengthen the boat house and put on a new roof. He said he also hired them to do a preliminary plan for the house. He said in the process of planning and fixing the boat house there was a conversation with the town, and they were told it was OK to fix up the boat house and replace the old ramp which had disintegrated. He said they were told they could not add anything to the boat house. He said at that time they decided to fix up the boat house structure, but not the ramp.
Mr. Seibel said Breakwater told him they could put a free standing deck and steps in front of the boat house. He said the door on the front has always been about 3-feet off the ground. He said he did not want to do anything at that time. He said he was also told about the 30-percent expansion restriction on the main house.
Mr. Seibel said he wound up not going forward with the main house renovation, but instead decided to fix up the boat house. He said he had the contractor put in a wood floor – previously the boat house had a dirt floor. He said the wood floor was installed partly to strengthen the structure. He said after the carpenters finished, a year went by, and he decided that he wanted to get a platform built for the front of the boat house, but without stairs. He said he was instructed that the platform could not be attached to the boat house. He said the structure is approximately 4.5-feet by 11-feet, and it sits on posts that sit on cement footers. He said it is not attached to the boat house. He said it can be picked up and moved, but it is too heavy for one person.
Mr. Seibel said the boat house is still a boat house, used for storage of canoes and kayaks, and for other items. He said when he purchased the property, the boat house was crammed full of old construction material from the previous owner. He said there is a mower and some swimming pool related materials stored in the building. He said he understood that if the platform was not permanently attached to the ground or the building, it would not be in violation. He noted that the platform is a lot less intrusive to the land than the former boat ramp was.
Chairman Fenton asked Mr. Seibel if he was familiar with the Shoreland Zoning Ordinance. Mr. Seibel said he had taken a look at it. Chairman Fenton said there are a couple of sections that might be pertinent.
Code Enforcement Officer's Case
Code Enforcement Officer (CEO) Dennis Ford referred to the Shoreland Zoning Ordinance and read the definition of a structure as follows:
anything built for the support, shelter or enclosure of persons, animals, goods or property of any kind, together with anything constructed or erected with a fixed location on or in the ground, exclusive of fences and poles and wiring associated with service drops. The term includes structures temporarily or permanently located, such as decks, satellite dishes, driveways and roads.
He said the platform was set on the ground and located within the required setback area and that is why he considered it an ordinance violation. He said that as far as the boat house was concerned, the structure had been renovated. He said he told the design firm it could be repaired if it had been damaged by no more than 50-percent of its appraised value. He said he suggested that the owners get an appraisal prior to starting work.
CEO Ford said the change from a ramp to a deck, the change of doors, and an addition of a rail seemed to leave the building with little opportunity to put a boat inside. He said it almost seems like a change of use.
CEO Ford said it technically could still be called a boat house. He said the deck constitutes a structure that would not be allowed in the buffer zone of the Shoreland Zone. Deputy CEO Jordan said no building permit was ever applied for.
Chairman Fenton said either the CEO or the Planning Board could issue a Shoreland Zoning Permit. CEO Ford said if a building is less than 100-square feet in size but located in the Shoreland Zone, it does not require a building permit, but does still require a Shoreland permit.
Mr. Seibel asked whether the CEO referred to the deck part only when referring to the building permit issue. He said the contractor got what was needed to repair the boat house. CEO Ford said he considered that maintenance of the building, and the work that was done was well within the jurisdiction of maintenance and does not need a permit. He said if the work exceeds 50-percent of the building's value, then it would require a new construction permit.
Chairman Fenton said the hearing was closed at approximately 7:17 PM
Chairman Fenton said he doesn't think there is any discrepancy that there is a free standing structure within the 100-foot Shoreland Zone setback. Mr. Fowler asked Mr. Seibel if sliding glass doors were put on the end of the building. Mr. Seibel answered that they were – the cost was about the same as to replace the barn doors with other barn doors. Mr. Fowler asked what the deck was used for. Mr. Seibel said it was for access through the boat house doors. Mr. Fowler asked what the deck was for. Mr. Seibel said it was there for access through the sliding glass doors. He said there is also a door on the side of the boat house for a 2nd access. Mr. Fowler said there is kind of an insinuation about glass doors a deck and a railing. Mr. Seibel said the deck makes access easier from the front, as well as from the side. He said they could put the boats on the deck. Mr. Fowler said the railing was quite restrictive. Mr. Seibel said the railing was for safety, to keep kids that might be playing on it from falling off. He said the railing was there for safety reasons.
Mr. Fowler asked if there was anything else done inside. Mr. Seibel said there was always electricity in there. He said they did replace a rotted window, but nothing else changed inside other than the floor.
Chairman Fenton closed the testimony gathering at 7:22 PM.
Findings of Facts
Chairman Fenton said that the CEO complaint mentions several sections of the Shoreland Zoning Ordinance, and he would like to go over each individually to see if they are valid.
Chairman Fenton said Section 12-C-1-c was mentioned and read as follows: No structure which is less than the required setback from the normal high-water line of a water body, tributary stream, or upland edge of a wetland shall be expanded toward the water body, tributary stream, or wetland.
Chairman Fenton said the deck structure is within the guidelines and does not meet the required 100-foot setback. He asked whether the Board should vote on whether the deck violates section 12-C-1-c. Mr. Wuorinen moved to find that the deck was in violation of section 12-C-1-c of the Shoreland Zoning Ordinance. Mr. Fowler 2nd . Vote in favor was 4-0.
Chairman Fenton said section 15-B-1 of the Shoreland Zoning Ordinance was cited next. Mr. Seibel asked if he could say something. Chairman Fenton said “not really”. He read section 15-B-1 as follows:
All new principal and accessory structures shall be set back at least one hundred (100) feet from the normal high-water line of any water bodies, tributary streams, or the upland edge of a wetland, …
Chairman Fenton said in this instance, he is referring to the deck. Mr. Wuorinen moved to find that the deck violates section 15-B-1. Mr. Fowler 2nd . Vote in favor was 4-0.
Chairman Fenton said section 15-C was cited, dealing with a conversion or change of use. He said he was familiar with the shore line in that area, and didn't think the deck extends over the high water mark. The Board looked at pictures from the CEO's inspection report and concluded that it appeared the deck did not encroach on the high water mark. Chairman Fenton said the ordinance does not allow conversion to a residential unit. He asked CEO Ford if that was what he was looking at. CEO Ford replied that there was some question about the floor and a deck with posts in front. He said on further pondering, he could see that it was used for canoes, and he would withdraw from his change of use determination.
Mr. Wuorinen moved to find there was no violation under section 15-c of the Shoreland Zoning Ordinance. Mr. Fowler 2nd . Vote in favor was 4-0.
Chairman Fenton said section 16-C has to do with obtaining permits. He read from the section as follows:
After the effective date of this Ordinance no person shall, without first obtaining a permit, engage in any activity or use of land or structure requiring a permit in the district in which such activity or use would occur; or expand, change, or replace an existing use or structure; or renew a discontinued nonconforming use.
Chairman Fenton said the structure was clearly in the Shoreland Zone and would have needed a Shoreland Zoning Permit. Mr. Wuorinen moved to find the deck was in violation of section 16C of the Shoreland Zoning Ordinance. Mr. Bragdon 2nd . Vote in Favor was 4-0.
Conclusions of Law – Chairman Fenton said the Appeals Board has gone through the issues, and while they understand that the structure was temporary and portable, it still needs a Shoreland Zoning Permit. CEO Ford said his interpretation is that any structure in the Shoreland Zone requires a permit. Chairman Fenton said of the four areas cited by the CEO, the Board has found that the deck violates three of them. He said the decision is that the contractors violated the Shoreland Zoning Ordinance for building the deck without a permit.
Mr. Fowler asked if they were only considering the deck. Chairman Fenton said they discussed the boathouse itself, and found it was not in violation. He said the floor was put in to save the structure and basically the boat house was being repaired. He said he doesn't think that constitutes a change of use. He said the door was an improvement to the structure, but the deck is the issue.
Mr. Fowler said he had a question about the building's appraisal and whether the repairs cost greater than 50% of the value. Chairman Fenton asked Mr. Seibel if there was an estimate of the boat house's value. Mr. Seibel said his insurance company estimated the worth of the building at $70,000, and the repairs were not even a quarter of that. A brief discussion followed about building values. Mr. Seibel and Chairman Fenton agreed it was a big boat house.
Secretary Marckoon asked if the Board wished him to write up a draft of the findings and conclusions and to schedule a meeting to finalize those. Chairman Fenton indicated that was indeed the desire.
The Board agreed to meet on September 30, 2010 at 7:00 PM at the Town Hall to conclude the case and issue the decision.
There being no further business, the meeting adjourned at 7:40 PM.
Stu Marckoon, Secretary