Town of Cumberland, Maine - Board of Appeals Minutes 2/12/2004

Present: R. Scott Wyman, Michael Martin, Andrew Black, Adrian Kendall

Absent: George Turner, Ron Copp, Matt Manahan

Staff: Barbara McPheters, Code Enforcement Officer, Debbie Flanigan, Clerk

The meeting was called to order at 7:06 p.m.
Mr. Wyman welcomed the applicants and gave an overview of the order of the meeting, stating that there would be opportunity for public testimony and four positive votes would be required approving a request.

Hearings and Presentations:

1. Variance: United States Cellular, 482 Congress Street, Portland Me 04101
Tax Assessor Map R03B, Lot 19, Rural Residential 2, Manufactured

Housing Overlay Zone (RR2m) District

Ms. McPheters presented background information as follows: United States Cellular requests a variance of nine (9) feet from the previously approved 190 foot height variance for a telecommunication tower at 159 Range Way on Map R03B Lot 19 in the Rural Residential 2 Manufactured Housing Overlay Zone (RR2m) District.   The applicant is requesting approval to increase the height of the existing tower to allow for new antenna installations. As a matter of housekeeping, the application form must be signed. The applicant is aware that this proposal requires site plan review and approval by the Planning Board.
Bill Fricke, an employee of LLC International, agents for US Cellular, stated that the current tower is 190'; and the request is to make the tower 199". Nine feet doesnt sound like much in terms of effect. However, the net effect for us is we either go up nine or ten feet or go down about fifty feet. Carriers require about ten feet of vertical separation between antennas. One reason for going to 199 is we wouldnt have to light it. The FAA kicks in at 200. Mr. Fricke addressed the requirements of Section 104.97:
A.      The need for a variance is due to the unique circumstances of the property and not to the general condition of the            neighborhood; There is little more unique than a cellular tower. It exists on the property and is part of the property.
B.      The granting of a variance will not produce an undesirable change in the   character of the neighborhood and will not         unreasonably detrimentally affect the use or market value of abutting properties;

C.      The practical difficulty is not the result of action taken by the petitioner or a prior owner;
        The practical difficulty is the result of the laws of physics. If we dont get the antennas high enough over the tree         canopy and over intervening structures and topographical features, they wont go to their limit.
D.      No other feasible alternative to a variance is available to the petitioner; We need height. We need a structure that is               high enough in the right location.
E.      The granting of a variance will not unreasonably adversely affect the natural environment;

        There is no unreasonably adverse affect on the environment.
F.      The property is not located in whole or part within the shore land area as described in Title 38, Section 435;
        The tower is not within the Shore land Zone; or in an endangered species habitat. There is minimal impact on the      neighborhood.

Mr. Wyman inquired if youre going up 9, whats the structural integrity of the tower and its capacity.
Pamela Chambers, of site acquisition, stated that she did not have the structural with her but SBA was doing that particular work, plus the addition. There is no structural concern for the 9 addition.
Mr. Kendall asked how close the nearest house is to the tower.

Ms. Chambers stated that the nearest dwelling is 1 mile on Range Way.

Mr. Black stated that the applicant had applied under the practical difficulty standard. Why was that standard chosen?

Ms. McPheters stated that was provided by her office.

Mr. Black stated that on page 174 of the zoning ordinance, under Section 603.2.2, the Standard for a height variance requires an undue hardship standard.
Mr. Kendall stated that on page 157, the very last sentence states that the additional tower height shall not require increased lot setbacks.
Mr. Black stated that the lot setback can only be a certain percentage. It has to be 125% of the height of the tower. The application has not been filed properly; the appropriate thing to do would be to let the applicant file a new application under undue hardship.
Mr. Martin asked why does D4 require a variance?

Ms. McPheters stated that the Planning Board cannot issue variances.

Mr. Martin inquired why a variance was required?

Mr. Wyman stated because it is a nonconforming use.

Ms. McPheters stated that she had an e-mail from Town Attorney Ken Cole that a variance was required based on the Ogunquit decisions and that the tower was a nonconforming use. The Town Attorney is willing to provide a written statement if necessary.
Mr. Wyman inquired if findings could be provided that show that a variance was not necessary.
Mr. McPheters stated that is in the jurisdiction of the Board.
Mr. Black moved to table the application to the March 11, 2004 meeting, with a determination by the Town Attorney.
Mr. Kendall seconded.

VOTE: UNANIMOUS

2. Variance Special Exception: Foreside Community Church, 340 Foreside Road
Cumberland Foreside ME 04110; Tax Assessor Map U01, Lot 2A

Limited Residential (LDR) District

Ms. McPheters provided background information as follows: Foreside Community Church Requests a special exception and a variance of thirty-five (35) feet from the fifty (50) foot setback for a parking lot at the Foreside Community Church at 340 Foreside Road on Map U01 Lot 2A in the Limited Residential (LDR) District. The applicant is requesting approval to allow for the construction of an expanded parking area at the existing facility.

Mr. Kendall read a letter from Mrs. Kay Sawyer, Foreside Road, in support of the Foreside Community Churchs request to expand the parking lot.

Steven Moore, landscape architect, representing Foreside Community Church, stated that the church was built in 1811 on the Cumberland/Falmouth town line. Additions were built in the 1970s. The Church would like to construct a parking lot on the adjacent land in Cumberland. The parking lot would accommodate 26 additional cars. The proposed parking lot conforms on the right side and backside but not on the front. The special exception request must comply with the following criteria found in Section 603.2.3:

.1 The proposed use will not create hazards to vehicular or pedestrian traffic on the roads and sidewalks serving the proposed use as determined by the size and condition of such roads and sidewalks, lighting, drainage, intensity of use by both pedestrians and vehicles and the visibility afforded to pedestrians and the operators of motor vehicles;

The proposed use will alleviate traffic conditions on Sunday when vehicles are parked on Foreside Road.

.2 The proposed use will not cause water pollution, sedimentation, erosion, contaminate any water supply, nor reduce the capacity of the land to hold water so that a dangerous, aesthetically unpleasant, or unhealthy condition may result;

The existing driveway is gravel. Through the construction process, an erosion control plan will be
implemented.

.3 The proposed use will not create unhealthful conditions because of smoke, dust, or other airborne contaminants;

The proposed parking lot will swept four times a year.

.4 The proposed use will be compatible with the uses that are adjacent to and neighboring the proposed location, as measured in terms of its physical size, intensity of use, visual impact, and proximity to other structures and the scale and bulk of any new structures for the proposed use shall be compatible with structures existing or permitted to be constructed on neighboring properties;

.5 The proposed use will not create nuisances to neighboring properties because of odors, fumes, glare, hours of operation, noise, vibration or fire hazard or restrict access of light and air to neighboring properties;

Headlights of vehicles leaving the proposed parking lot will face away from neighbors.

.6 The proposed location for the use has no peculiar physical characteristics due to its size, shape, topography, or soils which will create or aggravate adverse environmental impacts on surrounding neighbors;

The proposed use will have erosion control, drainage control, storm water management and re-vegetation.

.7 The proposed use has no unusual characteristics atypical of the generic use which proposed use will depreciate the economic value of surrounding properties;

The existing house is in such poor condition that its removal alone will help offset any change that the proposed parking lot will have on economic value of the neighboring properties.

.8 If located in a shore land zone, the proposed use (1) will not result in damage to spawning grounds, fish, aquatic life, bird and other wildlife habitat; (ii) will conserve shoreland vegetation; (iii) will conserve visual points of access to waters as viewed from public facilities; (iv) will conserve actual points of access to waters; (v) will conserve natural beauty; and (vi) will avoid problems associated with flood plain development and use;

The proposed parking lot is not in a shore land zone.

Mr. Wyman asked the public for testimony either in favor, against or neutral.

There was no public testimony. The public portion was closed.

Mr. Kendall moved to approve the Special Exception request for the parking lot located at 344 Foreside Road Map U01 Lot 2A in the Limited Residential (LDR) District.

Seconded by Mr. Black.

Chairman Wyman stated that the members have found that each of the items has been met with no opposition for a Special Exception and the additional standards.

VOTE:    UNANIMOUS (4)

Mr. Moore continued with the variance request. He stated that part of the goal of the project was to not only to accommodate parking, but to maximize that parking while still creating appropriate conditions for our neighbors and appropriate safe circulation inside the properties themselves. What we had for figures from the congregation was 18-22 cars of normal overflow on a Sunday. When the parking lot was originally striped it accommodated 50 cars. Over the years, the stripes disappeared and 45 cars fit on the site right now. When we make the proposed changes, we get up to 68 cars completely on the site. The existing lot that goes up to the church is sloping up almost uniformly from Foreside Road. But the adjoining lot is actually four feet lower in the back, so it doesnt pitch up to connect. In order to make these two connect, we chose to actually split them apart and let one lot travel up and catch the other lot at the top. The other practical side of this was, this allows this parking lot to be built without a disruption of the existing parking lot, and thereby reduces some of the impacts and costs of that as well.

Mr. Wyman inquired that based on the parking calculations; Mr. Moore is suggesting that perhaps he only needs 60 spaces to adequately meet the needs of the church based on seating inside the church.

Mr. Moore replied that based on the existing counts; that is correct.

Mr. Black inquired that if it just a front setback, according to the regulations on Page 33, is there something special for parking lots. Parking lot doesnt meet the definition of a structure.

Mr. Wyman asked the public for testimony in favor, against or neutral.
There was no public testimony. The public portion was closed.

Mr. Martin inquired if there were more than 15 feet between the first parking space and the road.

Mr. Moore stated that there was.

Mr. Kendall asked if the parking stalls were 9 x 18.

Mr. Moore stated that they were. If the new 26-car parking lot is built, becomes a 68-car lot.

Mrs. McPheters stated that if the Board determined that the parking lot is not a structure, then it would not need to meet the 50 front setback.

Mr. Black stated that if you dont pave the parking lot, then it is not a structure.

Mrs. McPheters stated that if they are putting in gravel and a sub base, then they are building it.

Mr. Kendall asked if there was any reason why the whole parking lot could be pushed further back.

Mr. Moore stated that because of the grades and the height differential between the existing parking lot in front of the church and because of the slope of that parking lot, we cant push the parking lot further up the slope because of the need to get from that low point up to the top, it makes that driveway too steep. The other issue on this particular lot is that we are constrained by the 67 of the existing lot and so we are trying to compact our parking lot and make it narrower to fit within the 15setback. We want to maximize the use of the parking lot. The issue for the church is to maximize the number of parking spaces on that acquired land. We are trying to get as many cars of the road as we can.

Mr. Black stated the Board needed to decide how the law applies, if the church needs a variance.

Mr. Black motioned that for the purpose of this application, the Board interpret the term "structure not to include parking lot.

Mr. Martin seconded.

VOTE:       IN FAVOR (3)
                 OPPOSED (1) Wyman

NEW BUSINESS:

Mr. Martin moved to approve the minutes of the January 8, 2004 meeting.

Seconded by Mr. Kendall.

VOTE: UNANIMOUS (4)

Mr. Kendall moved to adjourn the meeting at 8:35 pm

Seconded by Mr. Martin.

VOTE: UNANIMOUS (4)

A TRUE COPY ATTEST

______________________________                       _________________________
R. Scott Wyman, Board Chair                                 Deborah Flanigan, Town Clerk