Town of Lamoine, Maine
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Board of Appeals
Minutes - December 2, 2015
Chairman Griff Fenton called the meeting to order at 6:31 PM at the Lamoine Town Hall.
Present were: Board of Appeals Members Connie Bender, Jon VanAmringe, Jay Fowler, Hancock “Griff” Fenton, Michael Jordan; Appellants William and Carol Shubert and their attorney Barry Mills, Code Enforcement Officer Millard Billings, Frank “Mike” and Wendy Young, Assistant Code Enforcement Officer Edward “Rick” Gallegos, Kathleen Rybarz and Matthew Bergin.
Chairman Fenton mentioned that the Board’s hearts go out to the people of San Bernadino, CA in light of a mass shooting incident.
Minutes – November 17, 2015 – Mr. VanAmringe mentioned two typographical errors in the draft minutes. Mike moved to approve as corrected, Jay, 2nd. Vote in favor was 5-0.
Appeals Board Ordinance Development – Chairman Fenton said this was a new working draft to send to the Planning Board and Selectmen once approved. Ms. Bender moved to accept as a draft and to forward as planned. Mr. VanAmringe will change it to a working draft. Chairman Fenton said he had a couple of things to discuss later. Mr. VanAmringe said he would send it to Administrative Assistant Stu Marckoon. Chairman Fenton said a cover letter requesting input would be good.
Mr. Jordan said the Appeals Board has not gone through the other ordinances to have changes made to them. Mr. VanAmringe said the request will be for input early on in the process. Vote in favor of sending on was 5-0.
Shubert v. CEO/Young – Mr. Jordan excused himself from the table.
Type of Hearing – Chairman Fenton said it’s stated in the ordinance that it’s a de novo hearing. Mr. Fowler said there is no choice on the type. The Board reviewed the Shoreland Zoning Ordinance appeals section. Mr. Fowler moved to hold a de novo hearing in accordance with the Shoreland Zoning Ordinance. Mr. VanAmringe 2nd. Vote in favor was 4-0.
Chairman Fenton asked what happens if there is a 2-2 tie. He said that requires that the entire process from the beginning be followed. He said the request for the permit would have the burden of proof. Attorney Mills said that is in the ordinance. Mr. VanAmringe said 3-votes are required for approval; if it’s a 2-2 vote, the vote does not pass.
Attorney Mills said he had no problem with whatever order the Board chose for presentations. Chairman Fenton said the applicant should present their case, and if someone has an issue with it, they present their case. A brief discussion followed on the order and format of presentation.
Chairman Fenton read a synopsis of the matter giving a chronological history of the matter.
Chairman Fenton noted that the Code Enforcement Officer (CEO) had submitted material to the Appeals Board. CEO Millard Billings asked what Chairman Fenton wanted to hear. Chairman Fenton said he’d like to start with the permit application.
Mr. VanAmringe asked for clarification on which parties own which properties. Mr. Billings referred to CEO Exhibit 10. He said lot 21 is the Young’s lot; lot 23 is owned by Rybarz, and lot 16 is owned by Shubert. Mr. VanAmringe asked to specify where the buildings are in relation to the water. Mr. Billings says Exhibit 10 shows two roads crossing lot 21, and that is incorrect; there is only one road. Mr. VanAmringe said he did not look at the property. He asked what the purpose of the roads where, whether it was access to the Shubert property. Mr. Billings said the correct one is the upper one; there is one physical road crossing those properties.
Michael Jordan said the reason for two roads, the tax maps show two legal rights of way drawn on the map. Chairman Fenton said the application is dated September 21, 2015. He asked what process the CEO uses to review the application. He asked if both a building and Shoreland permit are required. Mr. Billings said he reviews the application for completeness, then uses the tax map, Shoreland zoning map and property record card to confirm what is on the lot.
Chairman Fenton asked how the “are current uses non-conforming“ question works. Mr. Billings said the applicant checked no. He said it’s partially non-conforming because the dwelling is within the setback. Chairman said the application shows an expansion of 250-square feet, but there is a discrepancy. Mr. Billings said it should be one story, and he corrected the square footage based on what they’d proposed.
Chairman Fenton noted a problem with the map and lot number was corrected. He asked if Mr. Billings uses demographic assessment. Mr. Billings said he looks at the sketch that was drawn. Mr. VanAmringe asked where the water is in relation to the map. Mr. Billings clarified that issue. Chairman Fenton said the edge of the house is 120-feet from the high water mark. The board reviewed the sketch, and clarified where the house sits in relation to the high water mark.
Mr. Billings said exhibit 7 shows pictures where the 100-foot stakes are located in relation to the back of the house. He said he took those pictures after the surveyor left.
Mr. Billings said he measured all the buildings and put them in a deed plotter and made a drawing of the building layout. Chairman Fenton said that appears to be more accurate than the sketch. He asked where the 100-foot setback is located; whether it’s through the house. CEO Billings said about 90-percent of the house is located within the 100-foot Shoreland zone setback.
Chairman Fenton asked about Exhibit 8, page 2. Mr. Billings said that was the calculation of the square footage from the property record card and the buildings. Mr. VanAmringe said 1.53 acres is the entire owned property. Mr. Billings said that any road serving two or more properties can’t be included in the calculation, so that was subtracted out. Mr. VanAmringe asked if that applied to a right of way. Mr. Billings said the ordinance did not address that, so he concluded it was only an actual road on the face of the earth. A brief discussion followed in regard to the calculation in this exhibit.
Mr. Billings said he reviewed the Building and Land Use Ordinance as well as the Shoreland Zoning Ordinance. He said all of the proposed breezeway is located in the Shoreland Zone.
Chairman Fenton asked if the CEO was familiar with the Shoreland Zoning checklist used by the Planning Board. Mr. Billings said he was not. Chairman Fenton said he would like to review that checklist and have the Appeals Board use the same review standards that the Planning Board did. He read each criterion to Mr. Billings who replied to each question. During this review, there was discussion about what a conforming Shoreland Lot was (200 feet of frontage, minimum acreage). It was noted this was a non-conforming lot of record.
Chairman Fenton asked about Exhibit 1 Page 2, the demographic information. Mr. Billings says the applicant fills that out. He confirmed that Page 4 of that exhibit shows the permit was approved.
Chairman Fenton reviewed a CEO Exhibit which is a letter from the Shuberts. He asked if there was something that shows a high water setback. Mr. Billings said that was part of Exhibit 1, page 2. Chairman Fenton said that box was not checked off. Mr. Billings said the drawing showed the building was set back 120-feet from the high water mark.
Mr. VanAmringe he understands that a notice of violation was issued because no stakes were placed and then stakes were set by a land surveyor. Mr. Billings said that was correct. Mr. VanAmringe asked if everyone was comfortable that the stakes were placed where they belong. Mr. Billings says the ordinance only requires a letter from the surveyor. He said he has no standing to verify the surveyor’s work.
Chairman Fenton asked about the difference between normal and mean high water marks. Mr. Billings explained the difference, and the surveyor is supposed to determine that.
Mr. VanAmringe said perhaps the Shuberts could outline the memo that was part of the CEO Exhibit.
Mr. Mills said he represents William and Carol Shubert in the appeal. He said Mr. Shubert consider this to be their home and intends to return here. He said the issue is the amount of coverage, and in listening to Mr. Billings he can see how the confusion has arisen. Mr. Mills says the 1.53 acres is an error from the assessment records. He said exhibit 10 in Mr. Billings’ materials showing the dimensions as a rectangular piece of property, and it’s almost exactly 1-acre and is consistent with their (the Young’s) deed. He said that deed is contained in the material from surveyor Steve Salsbury (pages 10 and 11). He said the Salsbury computation was 1.09 acres. He said the point isn’t really relevant, as they’re dealing only with the property within the Shoreland Zone. He said the area within the Shoreland Zone is 35,244 square feet (that area within 250-feet of the shore). Mr. Mills said the question is whether the amount of coverage exceeds 10-percent of that amount, or more than 3,524 square feet. If so, it’s more than 10-percent coverage.
Mr. Mills said Mr. Billings and Mr. Salsbury agree on the building dimensions. He said CEO Exhibit 8 page 2 shows the numbers of the buildings, and that is 4,113 square feet, but the second garage must be removed, because it’s not in the Shoreland Zone. He said make it less than 3,524 square feet, so it might be OK. He said when the road comes into the calculation that makes a difference. He said the ordinance provision about roads serving more than one property. He said the road along the top is not in the Shoreland Zone, so it’s not counted. He said what is counted is the roads that are on the Young property that serve that property. He referred to aerial photographs in the Salsbury Exhibit (exhibit 3), and supplied a colored copy to the chairman. He pointed out the driveway and parking areas on each side of Mr. Young’s lot, and explained the driveway layout. He said if you count the driveway between the two buildings, that’s over 7,000 square feet of ground coverage. He said those must be counted because they don’t serve more than one property.
Mr. Mills noted a driveway on the eastern side of the shed and said it’s new construction and it’s only 8-feet from the boundary line and that conflicts with the building and land use ordinance, and there is no permit for the road. He said the roads were constructed after 2011 and there are no permit records. He pointed out the difference between two aerial photographs. He said structures and impermeable surfaces, and driveways and roads are included in the definition of structures. He said there is twice the amount of coverage that is permitted, and that is well over the 10-percent.
Mr. Mills said the non-permitted roads are an enforcement issue, and he assumes that at some point the CEO or Selectmen would address that. He said the concrete pad is an impermeable surface and if the permit is denied, it would presumably be removed.
Mr. VanAmringe asked for further clarification of the pictures, and Mr. Mills came to the table to do so.
Mr. Fowler asked whether the driveway that currently goes through the proposed breezeway would be eliminated. Mr. VanAmringe asked about the definition of permeable and impermeable. Mr. Mills says a dirt road is defined as a structure. A brief discussion followed.
Board members reviewed the aerial photographs, looking at the access drives and discussed the lay of the land. The colored photograph of exhibit 3 was added to the record.
Mr. VanAmringe asked if there was any dispute whether the driveways exist. Mr. Billings said he would like to look at page 2 of the letter from Steve Salsbury letter. He said the tax records do not agree with Mr. Salsbury’s calculation. He said he relied on the tax records.
He reviewed several calculations in the Salsbury report. He said the aerial photograph does not accurately depict what is on the face of the earth today – it’s from July. He said a lot of what is shown doesn’t exist today. He noted that some of the disturbed soil would be replanted once the construction is done. He said the measurements taken from the aerial photograph are wrong, they don’t exist today.
Mr. VanAmringe asked if this was taken from Google Earth. Mr. Mills said it was, and time stamped by Google in July 2015. Mr. Young said he has a more current photograph and gave a copy of that to the Board. Board members reviewed the photograph, which Chairman Fenton marked as Exhibit 3-A. Mr. VanAmringe some measurements are needed to measure what’s actually there. A discussion followed on how to measure.
Mr. Mills said the current structures make up 9.2% of the lot. Mr. VanAmringe asked if that includes the proposed breezeway. Mr. Mills said yes. He said if you add the roads that puts it over 10-percent.
Mr. Billings went to the white board in the meeting room and drew a diagram of the road layout, and explained what he understood the layout to be. There was a discussion about re-vegetation specifications, and how much of the driveway is counted in the Shoreland Zone.
Mr. Bergin said the shed is a temporary structure and they intend to remove that out of the Shoreland Zone if absolutely necessary. Mr. VanAmringe asked how big the driveway could be. Mr. Bergin said it could be 300-square feet, and if the shed is removed, it could be 450-square feet. He said moving the shed would be a last ditch resort. Mr. VanAmringe asked how big the driveway is now. Mr. Bergin said he didn’t know. Chairman Fenton asked how far the distance was from the road to the garage, and that number was not known. A brief discussion followed on how to measure the driveway. Mr. Young said they could narrow the driveway.
Mr. Mills says there is presently a lot in excess of the coverage and the permit should be denied. He said the buildings come very close to the 10-percent coverage. Mr. Young said it was always the intention to discontinue the drive once the breezeway was done. He said this is the third legal go-round between his family and the Shuberts and they could have asked, but they didn’t. He said there were assumptions and conjecture. He said they’d really like the permit because there is exposed concrete. He said they are not driveways and were not intended to be.
Mr. Mills said it’s unfortunate that they couldn’t talk over a cup of coffee, but this is the way it has to be done. He said they’d like to know what kind of coverage is going over the driveway. He said the coverage could be done first, and then the permit could be applied for.
Mrs. Shubert asked to speak and began to speak about the animosity. Chairman Fenton said the board intended to disregard animosity and would not hear it, as it’s not part of the process. Mrs. Shubert said there is a pad for two propane tanks and a generator which should go into the coverage calculation. She said some of the trees should be put back too. Chairman Fenton said her information was not pertinent.
Ms. Bender asked CEO Billings if he can issue conditional permits. Mr. Billings said occasionally, yes. He said he could issue a permit conditional on re-grassing the driveways.
Mr. Bergin said this is a construction site, and it’s been going on for a couple of years. He said the areas around the buildings have not been seeded and he has a landscaper lined up to do that.
Chairman Fenton said the Board has an issue before it now. Mr. Bergin said he didn’t know how it could be counted as a structure; it’s unfinished construction. Chairman Fenton said the Board will have to determine that.
Mr. VanAmringe asked about the location of the shed and propane tank pad. It was pointed out on Exhibit 3 by Mr. Mills, who said the Board should take what “is” instead of what “will be”, and the driveway should be counted. Mr. Young asked to explain why the generator pad is where it is. Chairman Fenton said that matter was not before the Board. Mr. Billings and Mr. Jordan said they don’t count such utilities in regard to setback.
Mr. VanAmringe said the Board could accept or reject as is. Mr. Billings said any construction site requires the topsoil is removed around the foundation and is replaced in the last phase of the construction project. Mr. Mills says the project has been going on for two years. He said the driveway between the two buildings is a remnant of an old driveway. Mr. Fowler said he has a pretty good idea of what was there before. (There was a brief discussion about CEO Exhibit 7).
Mrs. Shubert said they watched the road being constructed, and it went down 18-inches, it’s a road. She said it impacts their property. Mr. Mills said the Youngs have the burden of proof that the totality of the project shows up in the photographs and it’s over the 10-percent figure.
Mr. Jordan said the burden of proof should be after the project is completed. Mr. Billings says he’s issued 8 new home permits, and all but one would allow the contractor to drive around the house with trucks. Chairman Fenton said if there is a road by the breezeway, it would be before the construction project is started. Chairman Fenton said the Board would have to go by the photographs that they have. Mr. VanAmringe asked if the expiration date on the building permit is enforceable. Mr. Billings said they have a year to finish the project.
Mr. VanAmringe asked if both parties agree to finish the project to a date certain, would that be enforceable. Mr. Billings said that would be a civil matter between two parties and something the town would not be involved with. Mr. VanAmringe said the reason the Board doesn’t listen to emotion is because it’s an opportunity to solve an issue without going to court. He asked if the CEO can put restrictions on a permit. Mr. Billings said he can attach conditions to a permit, and gave an example. Mr. VanAmringe asked if a condition of the permit would be to comply to the 10% lot coverage maximum by remediating things like moving the shed and restoring the driveway. Mr. Billings said the permit could be approved, denied, or approved with conditions. He said if the permit is issued with conditions, those conditions are enforceable. Chairman Fenton restated the options before the Appeals Board.
Mr. Billings asked if there could be more discussion about driveways around construction sites, as that could affect every project in the town. Chairman Fenton said they would take input from all and work that into their decision. He restated that the reason for the Board of Appeals is to try act without having to go to court. He said this was a de novo hearing and they’ve heard just about everything that surrounds that. He said he appreciated that everyone has acted civilly.
The meeting took a brief recess.
Mr. Mills said they would suggest the permit be approved with conditions. He said the conditions would include having the Youngs submit a plan from a surveyor showing that the project is less than 10% coverage, and those impermeable surfaces be made permeable, and that the surveyor be willing to certify that the drainage from the easterly side of the property would not be directed to the Shubert land. He said if those were conditions, the permit could be granted. Chairman Fenton asked if that was within the board’s purview. Mr. Mills said it could be.
Mr. Young said the conditions would be somewhat onerous. He said the permeable condition is a problem. Mr. Mills says this is in the ordinance. He said they would have no complaint if the surface is not impermeable. Mr. Fowler suggested that not having hot top or concrete and would make it permeable. Mr. Mills says a hard gravel surface creates a drainage issue. A brief discussion followed in regard to drainage. .
Mr. VanAmringe said he would like a citation of where permeable or impermeable is used within the ordinance. He said he didn’t know where the slope goes on this lot. Mr. Mills said he suggested the slope was a way out of the impasse. He said the word permeable is contained in the section in lot coverage. He said they don’t have to deal with permeability as driveways and roads are considered structures. Mr. VanAmringe said Mr. Mills argues that it’s a driveway and the Youngs say it won’t be when the project is done. He said he didn’t want to get into negotiating between the parties. He said it appears that if a third party ascertains that it meets the 10-percent rule and no drainage, this is the offer.
Mr. Young said perhaps a good result might be to add lot coverage on the permit application as a help to applicants. Chairman Fenton praised the work of the Code Enforcement Officers.
Mrs. Shubert asked if a survey would be normal submission for a permit. Chairman Fenton said that’s not a normal submission. He then declared the hearing closed.
Deliberation – Mr. VanAmringe said because this is a de novo hearing, the Board needs to decide on what basis on how to do this. He said there are three choices; accept the appeal and reject the permit, accept the permit and reject the appeal, or find some common ground.
Chairman Fenton said he didn’t think there were any questions about anything in the application except for the amount of lot coverage. He said they don’t have exact dimensions to come up with the calculation. He said it’s very close, but the board does not have the final facts. He said if the board does not have the calculation and can’t get it; that presents a problem.
Mr. VanAmringe asked if that leads to deferring a decision until someone measures. Chairman Fenton said he doesn’t like to make a decision on something that is incomplete. He said they could reject the application because the information isn’t there. Mr. VanAmringe said he’s happy to have the CEO take the dimensions if that’s OK with both parties. He said then the Board could render a knowledgeable decision.
Chairman Fenton said there are remedies no matter which way the Board decides. He said if the Board finds it’s over the 10-percent coverage, the Youngs could resubmit a permit application to bring it under. He said if it’s under the 10-percent, we’re done. He said the Code Enforcement Officer could come back with a figure and the Appeals Board could do the math.
Mr. Mills asked what the CEO would be measuring – is it a driveway or a construction site. Mr. VanAmringe said the Board would have to decide that. Chairman Fenton said he wants one critical measurement and outlined what that was. He said the board could have a site visit. A brief discussion followed on what was to be measured. Mr. Mills asked that a driveway on the eastern portion by the garage be included. He asked if all the measurements would be taken. Chairman Fenton said until the Board has all the numbers, it can’t be an informed decision. Mr. Mills asked if Steve Salsbury could accompany Mr. Billings. Mr. Billings said he would take anyone who wants to go. He said he understands what the board is asking, and went to the white board and pointed out what he believed the board wished to have measured. Chairman Fenton said conditions could be placed on a permit.
Mr. VanAmringe said he would like to know what the slope is. Mr. Mills asked if the Young’s had any objections to Mr. Salsbury accompanying Mr. Billings. Mr. Young said so long as that is the limit of Mr. Salsbury’s actions. He addressed the slope issue and said his land is uphill from the Shuberts’ land.
Mr. Billings said he would like to get it done on Monday. Chairman Fenton asked if Mr. Salsbury is not available Monday, could Mr. Salsbury come some other time. Mr. Young said he’s not comfortable with that – he would like to be present when the surveyor is there. Chairman Fenton asked if that was comfortable. Mr. Young said so long as that’s all they’re looking at.
Chairman Fenton said they need the numbers to make a decision, and the hope to do the right thing of abiding by the ordinance. Mr. Fowler said there could be all kinds of configurations for the area that needs to be measured; namely the driveway area beginning at the far end of the Shoreland Zone to the front doors of the garage. Mr. VanAmringe said if the total is less than 10-percent they’re all set, and if it’s more, something will have to be restored to get approval.
Mr. Jordan re-stated that a permit means what is on the face of the earth when the project is done. Chairman Fenton asked when the project is done. Mr. Billings said it’s when the CEO is called to issue a certificate of compliance.
Mr. Fowler asked Mr. Bergin if he could bring in a drawing showing what would be lawn and what is proposed to be driveway. Chairman Fenton said he wants to determine whether a permit is issued, and lot coverage is the only contentious thing in this whole application.
Next meeting – The board discussed when to meet again. After extensive discussion, the Board recessed this meeting and will continue on Tuesday, December 8, 2015 at 6:30 PM.
The meeting recessed at approximately 9:02 PM
Stu Marckoon, recording secretary
(minutes complied from Lamoine CTV Recording)