Mr. Wyman welcomed the applicants and gave an overview of the order of the meeting.  Stating there would be opportunity for public testimony and four positive votes would be required approving a request.
1.      Variance                                                 Mark Doering
                                                                168 Foreside Road
                                                                Cumberland Foreside, ME
                                                                Tax Assessor Map U06, Lot 4A
                                                                Limited Density Residential

Ms. McPheters presented background information as follows: Mark Doering requests a variance of fifteen (15) feet from the required fifteen (15) foot setback requirement for a driveway to a single-family dwelling at 168 Foreside Road, Tax Assessor Map U06, Lot 4A in the Limited Density Residential District.  Mr. Doering is requesting approval to allow the existing driveway to remain along the newly created property line.  The variance request must comply with the practical difficulty definition in Section 104.97 of the Zoning Ordinance.

Mr. Doering, applicant stated he had purchased the property in October of 2003 from Debra Butterfield who owns the adjoining property.  His house was built, as a guesthouse in the 1970s and at the time was one lot.  At some time the lot was subdivided and a driveway was added.  After he was under contract to purchase the property it was discovered that the driveway was on the abutting lot.  The Butterfield's agreed to add the driveway property to his parcel at the time of sale.  There was no way to meet setbacks for his driveway without creating a non-conforming status on the Butterfield"s property.  At the time the problem was discovered he was too invested to back out of the real estate transaction.  He is not able to re-locate the driveway to the other side of the property.  The Board was presented with documentation of the e-mails, faxes etc. in reference to the property line dispute.

Mr. Wyman asked for testimony from the public in support of the application.  There was none.  He asked for testimony that was in opposition, neutral or for informational purposes.  There were no comments.  The public portion of the meeting was closed.  

Mr. Wyman asked the applicant if the driveway issue became apparent during financing.

Mr. Doering stated that during negotiations and the survey it was discovered the driveway was on the abutting property.

Mr. Wyman asked if the Code Enforcement Officer would take any enforcement action at this time.

Ms. McPheters stated she had consulted with the Town Attorney who stated: the land being added to the existing nonconforming lot at 168 Foreside Road, will not change the status of the lot as long as the changes do not make the lot less conforming.
The 15 driveway set back requirements will not be waived or altered by the Town under these circumstances. The property owner may want to be given a deeded right-of-way for the driveway access.

Mr. Wyman asked if the existing driveway was non-conforming.

Ms. McPheters stated yes.

Mr. Wyman asked Mr. Doering if there were any other feasible alternatives.

Mr. Doering stated there is a buffer of vegetation and a large oak tree next to the driveway.  The water and sewer lines are 25 from the driveway and the house faces the driveway.  To bring the driveway in any other way would prohibit adding a garage to the house.

Mr. Kendall asked for clarification on the property line.

Mr. Doering stated the property line follows the driveway; the intent was to have the property as conforming as possible.

Mr. Turner stated he is a neighbor on Carriage Road and if the driveway were relocated anywhere else, further to the Northeast on Route 88 it would be closer to Hallmark Road.  He felt there would be an increased safety concern if the driveway were closer to Hallmark Road.

Mr. Manahan asked if it would be a financial hardship to move the driveway.  The seller divided the lot without thought to the setbacks.

Ms. McPheters stated the driveway was installed prior to the 1986 15 driveway setback requirement.

Mr. Manahan asked about the definition of side lot line.

Ms. McPheters stated that is defined on corner lots.

Mr. Martin stated the applicant could have received an easement for the driveway, if no land had been added to the property there wouldnt be a need for a variance.

Mr. Manahan asked where the front door was located.

Mr. Doering stated the property is a chalet and the door faces the driveway.

Mr. Martin stated shared driveways are common in Maine, if the driveway were shared would it be grandfathered and require no action.

The Board reviewed the lot diagram.

Ms. McPheters stated she had consulted with the Town Attorney and was given three options for the property.  An easement could be given instead of changing the property line; a variance could be requested; or the property line could be changed to meet the setbacks.

Mr. Doering stated the bank had advised him that an easement was not favorable for financing.

Mr. Manahan stated easements are commonly used tools for access to properties.

Mr. Martin stated the driveway exists and granting a variance would not change anything.

Mr. Kendall asked Mr. Doering if he had consulted with Hopkinson, Abbondanza, Backer attorneys.

Mr. Doering stated yes, his closing was originally scheduled for August 29^th and he didnt purchase the property until October 31^st.  This real estate transaction caused a great deal of duress and anxiety.  He had given notice for his apartment and had to find temporary accommodations until the issue could be resolved.

Mr. Black stated if the land were exchanged with the previous owner for an easement there would be no need for a variance.

Mr. Martin stated nothing has changed within the last thirty days.

Mr. Manahan reviewed the criteria that stated the hardship is not the result of action taken by the applicant or a prior owner.

Mr. Kendall agreed the property could be deeded back to the seller and Mr. Doering could maintain an easement over the property.

Mr. Martin asked the applicant if he had a mortgage on the property.

Mr. Doering responded yes.

Mr. Wyman asked how long the Butterfields had owned the property?

Mr. Martin asked Mr. Doering how the boundary dispute was discovered.

Mr. Doering stated after he was under contract to purchase the property and his mortgage broker indicated that an easement would limit his financing options.

Mr. Black asked if Mr. Doering had an attorney.

Mr. Doering stated the attorney for the Mortgage Company did the title work.

Mr. Kendall asked Mr. Doering if he knew about the problem in August.

Mr. Doering stated the issue was disclosed in late August or September after he had a purchase and sale on the property, under much duress the lot was made as non-conforming as possible.

Mr. Manahan asked the applicant if he consulted with a Real Estate Attorney.  He stated the option of the land being conveyed back to the seller with an easement for driveway would eliminate the need for a variance.

Mr. Wyman stated that would cause another financial hardship.

Ms. McPheters stated to convey the land back to the seller would increase the non-conformity of the property.

Mr. Kendall asked if Mr. Doering had been in contact with the seller for this process.

Mr. Doering stated the purchase was very rough and he had no direct interaction with the sellers until the closing.

Mr. Black stated the Mortgage Company may have given bad advice, but the driveway exists.

Mr. Wyman stated the driveway was placed prior to the 15 driveway setback requirement.

Mr. Manahan asked Ms. McPheters if she informed the applicant of the option for an easement.

Ms. McPheters stated yes.

Mr. Doering stated he didnt recall.  He had no place to live, so continued with the deal, he hired attorneys and listened to their advice; he may have chosen the wrong path.

Mr. Martin stated no one is affected; it is a legal change, not the typical self-created problem.  The lot was made less non-conforming and it would not serve anyones purpose to move the driveway.

Mr. Black agreed.

Mr. Kendall moved to grant Mark Doering a variance of fifteen (15) feet from the side setback requirement for an existing driveway to a single-family dwelling at 168 Foreside Road, Tax Assessor Map U06, Lot 41 in the Limited Density Residential district.

The Board reviewed the "Practical Difficulty standards with the following findings and conclusions:

Pursuant to 30-A M.R.S.A. §4353(4-C), the Board of Adjustment and Appeals may grant a variance only when strict application of the ordinance to the Applicant and the applicants property would cause a practical difficulty and when the following conditions exist.  Practical difficulty shall mean that the strict application of the ordinance to the property precludes the ability of the petitioner to pursue a use permitted in the zoning district in which the property is located and results in significant economic injury to the petitioner.  The applicant must document how significant economic injury would occur.
The applicant would suffer significant economic injury if he had to incur the cost of removing the existing driveway.  The house faces the driveway and he would not be able to add a future garage to the house.
The Board found this requirement to be satisfied.

A.      The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
The property was in common ownership when the driveway was installed in the 1970s.  The driveway was installed prior to the Ordinance setback requirement.
The Board found this requirement to be satisfied.

The driveway has existed since the house was built in the 1970s.  There is a buffer of trees between the driveway and the abutters property.  The existing driveway will not produce an undesirable change to the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting property.
The Board found this requirement to be satisfied.

C.      The practical difficulty is not the result of action taken by the applicant or a prior owner.
The driveway was installed prior to the adoption of the fifteen-foot side setback requirement in the Zoning Ordinance.
The Board found this requirement to be satisfied.

D.      No other feasible alternative to a variance is available to the petitioner;
The driveway exists and there is no feasible alternative to the petitioner.  To move the driveway closer to Hallmark would create a safety issue.
The Board found this requirement to be satisfied.

E.      The granting of a variance will not unreasonably or adversely affect the natural environment; and
The driveway exists, granting the variance will not unreasonably or adversely affect the natural environment.  
The Board found this requirement to be satisfied.

F.      The property is not located in whole or in part within the shoreland areas as described in Title 38, Section 435.
The property is not located in the shoreland zone.
The Board found this provision inapplicable.

Administrative Matters

1.      Ms. McPheters reviewed the letter that was sent to the Planning Board from Sally and Samuel Wilkinson, of 35 Butterworth Farm Road.  The letter stated they have noticed a number of signs for private businesses on Middle Road and most of these are tasteful and discreet.  However, the sign for Storey-Smith Pediatric Clinic at 85 Middle Road seems disproportionately large and out of place in a residential neighborhood.  

They assume that this sign meets the requirements for home business in residential areas and, assuming it does, we are writing to express our concern about the size of this sign in an area, which is primarily residential as the sign is overwhelming and obtrusive.

We would strongly urge the Board to consider amending the Ordinance to require smaller more appropriate size signs for home businesses in areas, which are primarily residential.

The Board discussed the Boards ability to regulate signs for home occupations.  

Ms. McPheters stated Section 414.3 of the Zoning Ordinance states Exterior displays, exterior storage of materials, and exterior indication of the home occupation will not be permitted except for signs as may be specifically provided for by the Board of Adjustment and Appeals and as may otherwise conform to the conditions of this Ordinance; which allow the Board to regulate the size of permitted signs.

2.      Minutes of November 13, 2003 meeting.

Mr. Kendall moved to approve the minutes of the November 13, 2003 meeting.
Mr. Turner seconded.                                VOTE:  Unanimous
Adjournment: 8:15 p.m.

A TRUE COPY ATTEST:




______________________________         ______________________________
R. Scott Wyman, Board Chair                   Pam Bosarge, Board Clerk