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Minutes - Februrary 1, 2016

Chair Hancock “Griff” Fenton called the meeting to order at 5:36 PM. 

Present were Appeals Board members Michael Jordan, Hancock “Griff” Fenton, Connie Bender, Jon VanAmringe, Cece Ohmart (arrived 6:58 PM); Code Enforcement Officer Millard Billings, Assistant Code Enforcement Officer Edward “Rick” Gallegos, Jay Fowler (Appeals Board member not participating), Appellant Mike Wight and Tony Shorey.

Minutes – January 25, 2016 – Mr. VanAmringe said the minutes needed to correct Mr. Wight’s name.  Mr. Jordan moved to approve the minutes as corrected.  Connie noted the next meeting time needed to be corrected to 5:30 PM.  Connie 2nd.  Vote in favor was 4-0.

Wight / Broughman Builders Appeal – Chairman Fenton thanked everyone for the submissions.  He reviewed the case briefly.  He said CEO Millard Billings issued a permit for this building on October 14, 2015 on Map 9 Lot 9A.  He said there were a couple of calls made in November attempting to contact Mr. Billings.  The Planning Board met in November in January showing a 65-foot setback.  There was a question about the 65-foot setback being highlighted. Mr. VanAmringe noted the yellow highlighting on the Appeals Board Document was not on the original application.  A notice of violation was given on January 11, 2016 saying the setback did not meet the Building and Land Use Ordinance. An administrative appeal was filed on January 11, 2016 saying the permit was granted with incorrect setback allowances.  One January 25, 2016 the Appeals Board met and considered an administrative appeal on the request for a variance and made the preliminary findings.  He resumed the meeting of January 25, 2016.

Chairman Fenton asked Mr. Wight why the Board should accept the variance.  Mr. Wight said his company has never received a violation before, but they were acting on what they were supposed to do by pulling a permit with the setbacks they thought were correct.  He said any other applicant would have the same issue he did, so he measured from the center of the road.  He said he didn’t pour the foundation, a contractor dug the hole and used the same permit for both the earth work and foundation.  He said he would have asked for a variance beforehand because of a swale.  He said they didn’t realize they were doing anything wrong.  He said the bank or the code enforcement officer usually shows up to measure.  He said he tried to get hold of CEO Billings to make sure they were OK.  He said he had no idea he was that many feet beyond where they should be.  He said they got an “end loan” inspection and inspector Patrick Downey did a bank survey after the house was done and the bank sent him a copy asking to get a variance.

Mr. Wight said CEO Billings called him on January 4th as he was headed to the town office to share his findings.   He said it’s a very expensive issue and they’re hoping to get a variance on it.

Chairman Fenton asked what the measurement he took for the setback.  Mr. Wight said it was 65-feet from the center of the road.   He said it was on a Town of Lamoine entrance permit that Stu (Marckoon) gave to him.  Mr. Fenton asked if Mr. Wight had both a town and a state entrance permit. 

Mr. Wight that was correct.  Chairman Fenton said he didn’t think it showed the setback of the house.  He said he thought he had to send the town copy in with the state.  Mr. VanAmringe said he thought it was only the state.  Mr. Jordan said there would be nothing from the town for an entrance permit on a state road. Mr. Wight showed the Town road entrance application and said he believed he sent that in with the state application. 

Chairman Fenton asked what the 65-feet was based on.  Mr. Wight said it was the center of the road.  Chairman Fenton said you have to do 50-feet from the edge of the right of way.  Mr. Wight said he realized that now.  He said he understood he could not build within 65-feet from the center of the road. He said he found out afterwards – he first thought the setback was 50-feet from the center of the road.

Chairman Fenton asked if there was a state setback from the road if there is no town ordinance.  Mr. Wight said he’s done it many times at 50-feet, so he’s not sure if there is a state standard.  He said he’s learning a lot about this the hard way.  Mr. VanAmringe asked if his past practice was from the center of the road.  Mr. Wight said that was correct.  Mr. VanAmringe asked if his past practice was 50-feet. Mr. Wight said that was correct.

Chairman Fenton asked CEO Billings to give his summary of the case.  CEO Billings said the permit was issued on October 14, 2015. He said at the January 4, 2016 Planning Board meeting, a member of the Planning Board expressed an opinion that the setback looked too closed.  He said he pulled the permit and it showed 65-feet from the edge of the right of way and it looked to be all right. 

CEO Billings said he got an e-mail on January 6, 2016 from Dawn Scott from Broughman Builders and attached was a survey from Patrick Downey and the e-mail said they were too close to the right of way and wanted to know how to get a variance.  He said he called Maine DOT to find out what the right of way was, and MDOT suggested looking in town records. He said he looked over the town records and found where it was a 3-rod right of way.  Mr. VanAmringe asked how long a rod was.  CEO Billings answered 16 and feet; a 3-rod right of way is 49 and feet, or approximately 25-feet from the center of the road. 

CEO Billings said he contacted Mr. Wight who showed up a few minutes later and they discussed the width of the right of way and how to get this matter to the Board of Appeals.

Mr. VanAmringe said he’s looking at the local road entrance application, and said it’s not a building permit application.  CEO Billings said he’s never seen that, and it’s a state road, so the town would not be issuing that.  Mr. VanAmringe said item #5 on the application which was filled out by Broughman and submitted to the state, and it says setback from the center of the road is 65-feet.  He said that goes to the state, and it’s not the same application that goes to the town.  He asked about the town building permit application and from his reading of this, he can’t tell whether 65 is from the edge of the road or from what Mr. Wight said the center of the road.  He said it looks like it’s from the edge of the road.  CEO Billings said the submission was from a town tax map, and it’s not the edge of the road, but the edge of the right of way. 

Mr. VanAmringe asked if here to look at the application and review it, it looks like it’s 65-feet from the edge of the right of way, and it looks to be proper.  He said he’s looking for the application submitted to the town, and he wanted to see if there is any place where it mentions distances other than the reference on the map that was discussed.  He said his interpretation was that it’s from the right of way.  Mr. Billings said that was his position – when he read the application he thought Mr. Wight was saying 65-feet from the edge of the right of way. 

Mr. VanAmringe asked whose responsibility it was to position the building and to measure to make sure it meets the requirements.  Mr. Wight said he’s not sure if it’s a responsibility issue but it’s usually checked by the bank or code enforcement.  He said from his point of view, he just highlighted this when he sent it to the appeals board.  He said he understood the Town of Lamoine road opening application he sent it to the state.  He said he assumed he had done his due diligence. 

Mr. VanAmringe said we need to figure out whose responsibility is it to ensure the proper setback; the CEO or the contractor?   Mr. Wight said code enforcement is supposed to check the plumbing, sometimes the electrical, and several other items.  He said if everyone did it perfect every time, we wouldn’t need code enforcement.  (Appeals Board member Cece Ohmart arrived at approximately 6:58 PM) Mr. VanAmringe said there is some question as to who talked to who.  He said there was some pressure to pour concrete and the excavator measured – he said he’s not sure whose responsibility to measure, the excavator, the concrete company, the town, code enforcement officer.  He said he’s not sure it’s a legal question.

Mr. Shorey said there are several ways to look at it.  He said the measurement would be used to get a building permit.  Mr. Wight said the concrete and ground work folks had the same documents.  Mr. VanAmringe it’s clearly not the subcontractor’s responsibility.  He said he had an experience with what he di

Mr. VanAmringe asked CEO Billings whose responsibility it was to ensure that the dimensions were all done.  Mr. Billings said it was not the CEO’s job to site a structure.  He said whoever is doing the project determines where they want to put the structure, fills out the application and get the permit.  He said usually before they pour the concrete, they call him, and he goes out and measures the setbacks before they pour the concrete.  He said that did not happen in this instance.  Mr. VanAmringe asked how many communities Mr. Billings serves.  Mr. Billings said it was five.  He said the applications vary in the different communities.  He said Lamoine’s application does not state whether the setback is from the center of the road or from the right of way.  He said there is no statement on the building permit application that says the setback inspection is required. He said usually that question is on the permit application. 

Chairman Fenton said in the research he has done, ultimately the responsibility is on the property owner.  He said the CEO makes sure the codes are followed.  He said as he looks at the sketch, and says 310-feet on Douglas Highway, and the arrows showing the 65-feet going to the edge of the right of way and to the house as it is sketched.  He asked how Mr. Downey knew.  Mr. Wight said he’s not exactly sure.  Chairman Fenton said Mr. Downey was the first one to notice this.  He asked CEO Billings if Mr. Downey talked to him.  CEO Billings said no, and read from the report generated by Mr. Downey. 

Mr. VanAmringe asked if Mr. Downey independently determined this was a 3-rod road.  Mr. Billings said he could not answer that – all he had was what Mr. Downey sent.  Chairman Fenton asked if Mr. Downey got it right.  Mr. Billings said yes.

Chairman Fenton asked if this would have been discovered if there had not been an end report.  Mr. Wight said it would have come up when pouring the foundation.  He said the foundation buy put the first structure on and used the building application.  He said CEO Billings was correct, and they’ve built in many towns, and it’s all different.  He related a story from the Town of Tremont.  He said it would take a lifetime to know every town’s ordinance.  He said it would be helpful to have one guideline for everyone to go by.  He said they had no intention of putting it in the wrong spot.  He said the town found out the same way he did from Mr. Downey’s letter. 

Mr. Billings said Mr. Downey’s letter said it appeared the subsurface wastewater system didn’t meet the setback.  He said the system is OK, the setback is only 10-feet and it meets the ordinance.

Mr. Jordan asked why it was a 62-foot setback.  Mr. Wight said he doesn’t have survey equipment and was using a tape measure.  He said they usually give themselves plenty of room and he thought it was a 50-foot setback so he would have room to spare.

Mr. VanAmringe asked about the Downey survey map and the swale.  Mr. Wight explained what a swale is and where it is located.  Mr. VanAmringe asked if was not his assertion there was not another place to place the home.  Mr. Wight said there were cost considerations.  He said it could be moved toward Ellsworth a little more and get the setback.  Mr. VanAmringe asked if there was no possibility of moving the property, the argument could be made that there is significant economic distress.  He said he understands there is significant economic impact if it must be moved.  Mr. Wight spoke of other situations, and said if he’d asked prior, he probably would not receive a variance, but be told to move it left.

Mr. VanAmringe said it’s not in compliance and it’s Mr. Wight’s argument is that it’s expensive and the home is no longer movable.  Chairman Fenton said the economic impact is not an issue. 

Discussion – Chairman Fenton said it’s not an issue of Mr. Wight trying to subvert the lot.  He said the application shows a 65-foot setback from the right of way.  He said no alarm bells would go off looking at it.  He said he could see the surprise when Mr. Downey came by and reported the setback. 

Chairman Fenton said the Rowe vs. South Portland case addressed whether a variance could be issued prior to the project.  He said he doesn’t know what wiggle room the Appeals Board has.  He said while it’s a hardship, it does not make the property economically unusable.  He said there are four criteria to meet, and it’s difficult to meet all.  He said the Legislature has offered an alternative, and if there is a practical difficulty, towns have an opportunity to enact a lesser standard of a variance.  He said our town has not enacted that, and it might be something to address in the future.  Mr. Jordan said it was interesting reading, but the town doesn’t have that. 

Chairman Fenton said the Rowe case hits this out of the ballpark.  Mr. Jordan said there are other places to build this.  Chairman Fenton said the state has not given communities other avenues to go in.  Mr. VanAmringe noted the Rowe case was a Supreme Court case in Maine, so it’s a final ruling.  Mr. Wight asked if the Board could list the four criteria.  Chairman Fenton said they are:

  1. The land in question could not yield a reasonable return unless the variance is granted.
  2. The need for a variance is due to the unique circumstances of the property and not the general conditions of the neighborhood.
  3. The granting of a variance would not alter the essential character of the locality.
  4. The hardship is not the result of action taken by the applicant or a prior owner.

Chairman Fenton said anything the owner or a prior owner did can’t be the hardship.  Mr. Wight asked the hardship is on the subcontractor.  Mr. Jordan said it would have to meet all four criteria.  The Board and Mr. Wight discussed what the term “return” meant.

Mr. VanAmringe said this is a sizable plot, and one could put a house elsewhere on the property.  He said someone will have to incur the cost of moving the house and that will reduce the return.  He said that has nothing to do with the cost of remediating.  Mr. Jordan said the Board is supposed to look at it as if the house wasn’t even there.  He said the Appeals Board could not have granted that type of variance.   Mr. Wight relayed a story about a project he did in Orrington where setbacks had changed. Chairman Fenton said the Board can only consider what it has here. 

Mr. Wight said he had the house almost together in 8-days.  He said the town has some responsibility to share documents to talk with one another – there should be some communication, so that the homeowner can do a good job.  He said there were some mistakes that could have been done differently by the Code Enforcement.  He said he they are going to have to move the house, this is going to be a very big issue.

Chairman Fenton said he understands where Mr. Wight is coming from and he did not do it maliciously.  He said he understands Mr. Wight builds many homes a year.  He said the Appeals Board must enforce the rules of the town.  He said it doesn’t say if you made a mistake, you can get a variance.  He said it doesn’t say if you didn’t intend to do it, you can get a variance.  He said the variance thing is so strict, you must meet all four criteria to get a variance.  Mr. Wight asked if it’s required to get a building permit before they start a building.  Chairman Fenton said yes.  Mr. Wight said he has a town of Lamoine document that specifically says 65-feet from the center of the road.  Mr. VanAmringe said it doesn’t say that.  Mr. Wight said it (the town’s local road opening application) was given to him by Stu (Marckoon), and he did everything he was supposed to do.    Mr. Jordan said the measurement shows 62-feet.  Mr. Wight asked if that matters.  Mr. Jordan said it does in the ordinance. 

Chairman Fenton said that is not the point.  He said that Mr. Downey could find in a survey that the project is out of the area.  He said the map shows 65-feet away from the right of way, so it should be about 90-feet from the center of the road.  Mr. Wight asked at what point he gets the effort about how wide the road is.  He asked how the homeowner is responsible for the financial burden of this because the information is not available.  Chairman Fenton said Mr. Downey had that information.  Mr. Wight asked if the information is correct, and whether the Downey survey was correct.  CEO Billings said after he did the research, Mr. Downey was right. 

Mr. Wight asked if the town assumes any responsibility for this.  Mr. Shorey asked whether if this issue would be before the board if Mr. Downey were not involved in this.  Mr. Wight said everyone agrees it’s in the wrong spot.  He asked who pays for it, if the town can’t grant a variance.  He said if the Appeals Board can’t grant a variance, who pays to move it.   Mr. VanAmringe said he’s not sure that’s a determination for this board to make.   He said Mr. Downey is a professional surveyor and the CEO verified the information is correct.  CEO Billings said he found the road width in town records, but he can’t verify it’s correct. 

Mr. VanAmringe said Mr. Wight is alleging that the town is responsible for telling him whether he is doing right or wrong.  Mr. Wight asked if it’s the authority having jurisdiction.  Mr. VanAmringe said both sides are stipulating that the building is where it is shown on the surveyor’s map, which means it is not in compliance with the setback provisions.  He said there is some allegation from the builder that he put it as 65-feet from the center of the road, but it’s not the town’s responsibility to issue that permit.  He said that permit was obtained well after the fact of the building permit.  He said he clearly reads that it’s 65-feet from the right of way.  He said based on that the town was right to assume it was supposed to be built.  Mr. Wight said the town didn’t know where it was supposed to be built.  Mr. VanAmringe said the town knew where it was to be built because you (Mr. Wight) told them where it would be built.  Mr. Shorey said the town didn’t know if that was the correct spot or not.

Mr. VanAmringe said it’s a case of “he said/he said”.  He said the state form is a permit to put a cut in the road; it is not a permit to locate the building.  Mr. Wight said the Town of Lamoine form clearly says it.  Mr. VanAmringe said that is presented to the State of Maine and the permit is granted by the state because it’s a state road. 

Mr. VanAmringe said it appears Mr. Wight feels the financial burden is being placed on them and Mr. Wight believed the town should be responsible for some of it.  He said there were a lot of incorrect assumptions.  He said the Appeals Board is presented with a building that is clearly in violation of the 50-foot setback, and nobody disputes that.  He said you (Mr. Wight) is asking the Board of Appeals can issue a variance, and that is the issue.  He said the discussion about the rest of this is irrelevant.  He said if everyone had realized this in advance and had this discussion in November, the Appeals Board said we could have said no, just move it. 

Mr. Wight said the State didn’t know what the setback was, and then CEO Billings found this paper which showed the right of way width. Mr. VanAmringe said the issue is the setback in the town ordinance is a minimum of 50-feet back from the right of way.  He said the fact is not something the CEO discovered.  He said the subsequent discovery was the road width.  He said the application showed the setback is 65-feet from the right of way.  He said 35-to-40% of the building is too close to the road. 

Mr. VanAmringe said he understands the frustration is that one form says one thing, and one form says another.  Mr. Wight said both forms say the same thing.  He said it was obvious between the two documents what he was trying to portray.  A brief discussion followed regarding the local road opening application and the building permit application.  Mr. VanAmringe said we’re not talking about missing by a matter of inches.

Chairman Fenton said we’re only acting on a request for a variance.  He said even with a 2-rod road, he would be missing on that, too.  He said the Board is having a discussion to try to figure out if it can grant a variance, and the Board has certain criteria to go by which the state has mandated.  He said all four criteria have to be met, and that’s all the board can do.  He said the board is not concerned with who pays or how it gets moved.  He said the applicant is asking for a variance – it’s that simple. 

Chairman Fenton said while everyone on the board might be empathetic to Mr. Wight’s situation, it doesn’t make any difference for the board doing what it has to do, and that makes it a little more difficult.  He said there are remedies available at Superior Court.  He said the Board is not concerned with any of the peripheral items – the issue is the board all agrees it (the current building setback) is not 75-feet.  He said the board is bound by the four items outlined by the Law Court, which are not in Mr. Wight’s favor. 

Mr. Wight said the four items could be interpreted many different ways.  Chairman Fenton said that’s why there are cases in the law court around these issues.  He said he would entertain a motion to discuss this issue.

Mr. Jordan moved to grant Mr. Wight a variance.  Mrs. Bender 2nd.  Mr. VanAmringe said he thinks the means and regulations under which the Appeals Board can grant a variance are not available.  He said all four criteria have to be met, and at least one and perhaps all four have not been met.   Chairman Fenton said the reasonable return item is not met, and if that’s not met, the others don’t need to be dealt with.  He said the court has set the criteria clearly, and there was no wiggle room.  He reflected on some of the history of the criteria.  He said perhaps the practical difficulty item is something the Planning Board and town could deal with in the future.

Vote on the motion to grant the variance was 0-5. 

Other Matters – Mr. Fenton thanked the appellants for their time and patience.

Mr. VanAmringe said he questioned whether the question before the board should have been to disapprove the variance.  There was a discussion about how to word the motion, and Mr. VanAmringe said it was clear what the sentiment was. 

There being no further business, the meeting adjourned at 6:49 PM

Respectfully submitted,

Jon VanAmringe, Secretary