Staff:                 Barbara McPheters, Code Enforcement Officer, Pam Bosarge, Clerk

The meeting was called to order at 7:05 p.m.

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 to approve a request.

Hearings and Presentations:

1.      Special Exception                           Benson & Kyle Legg
                                                  65 Juniper Lodge Road
                                                  Chebeague Island, Maine
                                                  Tax Assessor Map I07, Lot 27
Ms. McPheters presented background information as follows: Benson and Kyle Legg request a special exception for an accessory apartment at 65 Juniper Lodge Road on Map I07 Lot 27 in the Island Residential / Limited Residential Shoreland Overlay (IR/LR) Districts.

The applicants are requesting approval for an apartment over a proposed attached garage.  The applicants have provided a floor plan for the proposed apartment.  The total living area is 2,528 square feet.  The proposed square footage of the apartment is calculated as 975 square feet, which is within the 40% allowed by ordinance.

Town records indicate that the current four-bedroom home is connected to an existing septic system.   Dick Peterson, Licensed Plumbing Inspector, has allowed a single bedroom to be added to existing systems with the understanding that the system would need to be replaced if a failure occurred.

According to the assessing records, the lot size is 10.9 acres.  The minimum requirement is 1.5 acres with a front setback of 55 feet, a rear setback of 65 feet, a minimum side setback of 30 feet and combined side setbacks of 65 feet.  It would appear that with 80 feet between the buildings the parcel could be separated and would not be in compliance with Section 407.1.4.  The application must comply with Sections 407.1 Accessory Apartments and 603.2.3 and 603.2.7 Special Exceptions of the Cumberland Zoning Ordinance.

Ms. McPheters presented the Board with a letter from Benson & Kyle Legg authorizing Mr. Geoffrey Summa to be their representative for the special exception request.

Mr. Summa stated the Leggs own an 11 acre lot with an 1800's farmhouse style cape house that is not winterized.  They would like to build a garage with an accessory apartment to stay in during off-season.  He stated to meet the requirements of Section 407.1.4 the owner would build the garage less than sixty feet from the existing dwelling.  He was not aware of the requirement when the plan was drawn.

Mr. Wyman asked why the Leggs couldn"t use the house in the winter.

Mr. Summa stated the house was built in the 1800s on a fieldstone and block foundation, and the plumbing cannot be maintained in the winter.  

Mr. Manahan stated § 407.1 states any single-family dwelling or existing accessory structure, which is either attached or detached&. He questioned how the applicant could meet the standards of the requirement for a structure that is not existing.  He asked the applicant if he had thought of separating the structure to meet setbacks for a single lot.

Mr. Summa stated the owners are not interested in separating the lot.

Mr. Wyman asked if Mr. Manahan was suggesting the applicant divide the lot.

Mr. Turner stated a garage could be built then the owner could ask for an apartment.

Mr. Martin stated § 407.1.1 states the unit to be added shall not exceed 40% of the total living area of the building.

Mr. Summa asked if the garage were built first where would the 40% of living space be.

Mr. Martin asked if the garage were built what area would apply to the 40% of living space.

Mr. Turner stated if the garage were attached the 40% would be calculated from the existing living area.

Mr. Black stated 407.1.1 didnt apply.

Mr. Kendall stated the Ordinance specifies 40% of the total living area of the building.

Ms. McPheters stated that historically the 40% of living area have been in the only existing dwelling whether attached or detached.

Mr. Wyman asked if the owners would be interested in splitting the property.

Mr. Summa stated they bought the property for privacy.

Ms. McPheters stated if the lot were split there would be an increased tax burden.

Mr. Martin asked if a two-family could be placed on the lot.

Ms. McPheters stated duplex dwellings are allowed however, the definition of duplex is dwellings attached with a common wall.

Mr. Wyman asked for testimony from the public in support of the application.  There was none.  Mr. Wyman asked for testimony that was in opposition, neutral or informational.  There was none.  The public portion of the meeting was closed.

Mr. Black asked if the special exception were granted would there be any mechanism to prevent the owner from sub-dividing the lot into two parcels.

Mr. Wyman stated the applicant would amend his application to move the structure closer than sixty feet from the existing dwelling to prevent the division of lots.

The Board discussed the Ordinance language concerning existing building and 40% of the existing living area of the building.

Mr. Wyman stated it was a difficult situation and recommended seeking an interpretation from the Town Attorney.

Mr. Manahan stated it was the Boards job to interpret the Ordinance and he was in favor of voting on the application.

Mr. Martin moved to grant a special exception to Benson and Kyle Legg for an accessory apartment as proposed by the applicant at 65 Juniper Lodge Road, Tax Assessor Map I07, Lot 27.

Mr. Manahan seconded.                        VOTE:    0 in favor
                                                           Unanimous opposed

The Board reviewed Section 407.1 Accessory Apartment with the following findings and conclusions.




407.1 Accessory Apartment

Any single-family dwelling or an existing accessory structure, which is either attached or detached, to the dwelling may be altered or expanded to include one apartment unit subject to the approval of the Board of Adjustment and Appeals as a special exception, and in accordance with the following standards:
The applicant proposes to build a new detached garage with an accessory apartment.
The Board determined that the proposed structure is not existing and therefore the applicant cannot satisfy the requirement that the accessory structure be existing.

.1      The unit to be added shall include no more than one bedroom and shall not exceed 40% of the total living area of the building; [Effective 5/15/89]
The applicant proposes to build a new detached garage with an accessory apartment.
A majority of the Board determined that the living area calculation must be based only on the living area within the proposed accessory structure (the "building), and therefore the applicant could not satisfy the 40% total living area of the building requirement.
The Board found this requirement not to be satisfied.

.2      The board may waive the lot size requirements, provided that the Plumbing Inspector indicates adequate capacity and conformity with the State Plumbing Code; but in no case shall such conversion be allowed on a lot smaller than 20,000 square feet.
The applicant has a new septic system design that would be installed at construction.
The Board found this requirement to be satisfied.

.3      This provision shall not prohibit the conversion of a single-family dwelling to a duplex or multiplex dwelling or the conversion of a duplex dwelling to a multiplex dwelling, so long as said conversion complies with all district and other zoning standards, including, but not limited to the minimum lot size per dwelling unit.  [Effective 5/15/89]
The applicant would locate the garage with the proposed accessory apartment within sixty feet of the existing house.
The Board found this provision inapplicable.

.4      An accessory apartment may be constructed in a detached accessory structure provided that the lot standards, and the setback requirements from the single-family dwelling to the accessory structure, for the district in which it is located cannot be met for each structure.  The parcel on which the single-family dwelling and the detached accessory structure are located cannot be split so that each structure is on a separate parcel. [Amended, effective 8/10/98]
The applicant proposed to build a garage that would be located closer than sixty feet to the existing structure, so that each structure could not be split onto separate parcels.
The Board found this requirement not to be satisfied.




2.      Special Exception                           Timothy Gooch
                                                  199 Gray Road
                                                  Cumberland, ME 04021
                                                  Tax Assessor Map U20, Lot 70
                                                  Local Business/ RR2/ LR district

Ms. McPheters presented background information as follows: Timothy Gooch requests a special exception for a duplex dwelling at 199 Gray Road on Map U20 Lot 70 in the Local Business / Rural Residential 2 / Limited Residential Shoreland Overlay (LB/RR2/LR) Districts.

The applicant is requesting approval of a two-family dwelling on a newly created six-acre lot.  A deed was provided with the application for the adjacent parcel.  No deed has been received for the affected lot of land.  It appears that the lot has been created with less than the required 150 feet of frontage along Gray Road.  Duplex dwellings are permitted by special exception in accordance with the zoning ordinance amendment effective December 25, 2002.

Mr. Wyman stated the Board has no deed for the parcel showing evidence the lot is in compliance with the zoning requirements.

Mr. Gooch stated Mr. Terry Snow, ESQ. is preparing a deed.

Mr. Wyman stated it was his opinion not to hear the case until the applicant could provide information showing the lot was conforming.

Mr. Gooch stated he had a survey from Wayne Wood.

Mr. Manahan asked if the survey showed 150 feet of frontage.

Mr. Gooch stated no; the frontage is 97 +-.

Mr. Black asked if the lot extended into Gray.

Mr. Manahan agreed the Board should not proceed if the lot created is an illegal lot.  He asked the applicant if he were aware of the frontage issue.

Mr. Gooch stated yes.

Mr. Martin stated the frontage requirement is 150.

Mr. Gooch stated the land around it has been developed.

Ms. McPheters stated the lot created is a non-conforming illegal lot.  The original piece had combined frontage to meet the 150 requirement.

Mr. Gooch requested his application be tabled.

Mr. Manahan moved to table the application of Timothy Gooch for a special exception for a duplex dwelling at 199 Gray Road, Tax Assessor Map U20, Lot 70 in the Local Business district.

Mr. Kendall seconded.                        VOTE:  Unanimous

Administrative Matters

Minutes of the December 12, 2002 meeting.

Mr. Manahan moved to approve the minutes of the December 12, 2002 meeting as presented.

Mr. Kendall seconded.                        VOTE:  5 in favor (Wyman,
                                                  Manahan, Kendall, Turner, Black)
                                                           1 Abstain (Martin)

Minutes of January 9, 2003

Mr. Manahan moved to approve the minutes of January 9, 2003 as presented.

Mr. Kendall seconded.                        VOTE:  5 in favor (Wyman,
                                                  Manahan, Kendall, Turner, Black)
                                                           1 Abstain (Black)

Ordinance Update

Ms. McPheters stated the Planning Board would be holding a public hearing on the zoning amendments for right-of-ways and non-conforming buildings on February 18, 2003.

Mr. Manahan asked if the amendment to allow an owner to add onto an existing structure if the setback violation was not increased was included in the amendments.

Ms. McPheters stated yes, the change would be similar to the setback overlay districts.

Mr. Black asked if that meant an owner wouldnt need a variance.

Ms. McPheters stated an example would be the Chebeague Island Hall, the ramp they were installing was squaring off the building, and would have only required a permit.

Mr. Wyman asked about a workshop.

Ms. McPheters stated she had talked with the Town Attorney regarding guidance in preparing findings of fact.  She would like to have a workshop to develop a procedure.  Mr. Holley from Chebeague is challenging the Boards decision.

The Board discussed the necessity for a workshop.  

Mr. Kendall stated he was uncomfortable attending a site walk where the Board did not have a pending application.

Ms. McPheters stated Mr. Kennedys application for gravel extraction was given to the Code Enforcement Officer for the Board of Appeals.  The application is then forwarded to the Planning Board for an advisory recommendation.  

Mr. Kendall stated the Board of Adjustment and Appeals should have had a copy of the application.

Adjournment

Mr. Manahan moved to adjourn.

Mr. Kendall seconded.                        VOTE:  Unanimous

Meeting adjourned at 8:30 p.m.

A TRUE COPY ATTEST:



_____________________________                 ____________________________
R. Scott Wyman, Board Chair                   Pam Bosarge, Board Clerk