Town of Cumberland
Board of Adjustment and Appeals
Minutes of Meeting
March 11, 2004
A. Call to Order
The meeting was called to order at 7:05pm
B. Roll Call
Present: R. Scott Wyman, Ron Copp, George Turner, Matt Manahan,
Absent: Adrian Kendall, Michael Martin, Andrew Black
Staff: Barbara McPheters, Code Enforcement Officer, Nancy Decker, Clerk
Mr. Wyman welcomed the applicants and gave an overview of the order of the meeting,
stating the last agenda item had been withdrawn.
C. Hearings and Presentations:
1. Peter E. Higgins request a special exception for an accessory apartment at 125 Bruce Hill Road on Map R05, Lot 42B in the Rural Residential 2 District.
Ms. McPheters presented background information as follows:
The applicant has provided a floor plan for the proposed apartment. The existing three- bedroom dwelling is 1,677 square feet of living area. The applicant has completed some basement level renovations and the whole building is to be recalculated with the Assessor on Tuesday, March 9, 2004. The applicant has provided an expanded septic system design for the existing home with an apartment. The applicant withdrew his previous application at the October 16, 2003 Board meeting.
The board will need to determine that the use will comply with the conversion regulations as stated in Section 407 of the Cumberland Zoning Ordinance.
Ms. McPheters stated that she and Bill Healey, the Assessor, had inspected the property on Tuesday, March 9, 2004 and recalculated the area. The area has increased and she gave the Board information.
Mr. Wyman asked Mr. Higgins to review his proposal.
Mr. Higgins of 125 Bruce Hill Road, stated this is a summer apartment for his parents. There is no intent to rent the apartment. He withdrew his proposal in October due the square foot issue of the existing house and proposed apartment. Since that time he has finished half of his basement, which is 598 square feet.
Mr. Wyman asked Mr. Higgins if the plan design has changed at all?
Mr. Higgins stated it has not. "It is much more formal now, with architect drawings instead of a rough draft.
Mr. Wyman: Am I correct in remembering this is going to be over the existing garage?
Mr. Higgins stated yes, I currently have a 2 1/2-car garage, and plan to add a third bay to the garage.
Mr. Wyman stated it would be helpful if the Board went over the square feet information that has been provided.
Ms McPheters reviewed the calculations. She presented the accessing records with the sketches and the photo of the house. She reviewed the area listed as basement finished, noting it was put in the gross area column and it did not transfer to living area. The first floor and basement calculated at 2,508 square feet and 40% is 1003 square feet The 2
nd floor is calculated at 1030 square feet and did not take into account some of what might be under the eaves area. There is also an area that appears to be storage that the board may want to deduct. The numbers are really close and will be rechecked for the building permit.
Mr. Wyman asked if members of the board had questions? None at this time.
407.1 Accessory Apartments
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:
.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 accessory apartment is not to exceed 1003.2 square feet which does not exceed 40% of the total living area of building.
The board found this requirement 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 Board determined this to be not applicable.
.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 accessory apartment will comply with zoning requirements in the RR2 district.
The Board found requirement to be satisfied.
.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 accessory apartment will be attached to an existing structure.
The Board found this to be not applicable.
The Board reviewed the Special Exception standards in Sections 603.2.3 and 603.2.7 with the following findings and conclusions.
.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 accessory apartment will not create hazards to vehicular or pedestrian traffic.
The Board found this requirement to be satisfied.
.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 proposed accessory apartment and existing dwelling has an acceptable expanded septic system design that will not cause water pollution, sedimentation, and erosion or contaminate any water supply.
The Board found this requirement to be satisfied.
.3 The proposed use will not create unhealthful conditions because of smoke, dust, or other airborne contaminants;
The proposed accessory apartment will be used for residential housing, and will not create any unhealthful conditions because of smoke, dust, or other airborne contaminants.
The Board found this requirement to be satisfied.
.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;
The dwelling will be compatible with the uses that are adjacent to and neighboring the proposed location.
The Board found this requirement to be satisfied.
.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;
The proposed accessory apartment 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.
The Board found this requirement to be satisfied.
.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 properties;
The accessory apartment will meet State Plumbing Code and will not create or aggravate adverse environmental impacts on surrounding properties.
The Board found this requirement to be satisfied.
.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 accessory apartment will have no unusual characteristics that would depreciate the economic value of surrounding properties.
The Board found this requirement to be satisfied.
.8 If located in a shoreland 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. [Amended, effective 12/2/86]
The Board found this requirement to be not applicable.
In addition, Section 603.2.7 was reviewed with the following findings.
In addition to the standards contained in Section 603.2.3, all special exceptions must conform with the performance standards set forth herein. No use already established on the date of adoption of this ordinance shall be so altered or modified as to conflict with or, if already in conflict with, to further conflict with these performance standards.
.1 The volume of sound, measured by a sound level meter and frequency weighting network (manufactured according the standards prescribed by the American Standards Association), inherently and recurrently generated shall not exceed a maximum of 60 decibels at lot boundaries, excepting air raid sirens and similar warning devices;
The proposed accessory apartment use will not create noise that would exceed a maximum of 60 decibels at lot boundaries.
The Board found this requirement to be satisfied.
.2 Vibration inherently and recurrently generated shall not exceed a peak particle velocity of .01 inches per second at lot boundaries;
The proposed use will not create vibration that would exceed a peak particle velocity of .01 inches per second at the lot boundaries.
The Board found this requirement to be satisfied.
.3 No materials or wastes shall be deposited on any lot in such form or manner that they may be transferred beyond the lot boundaries by regularly recurring natural causes or forces, and all materials which cause fumes or dust, constitute a fire hazard, or are edible or otherwise attractive to rodents or insects if stored out-of-doors shall be in closed containers;
The proposed accessory apartment will not have any waste that would cause fumes, dust, and fire hazard or attract rodents or insects. There will be no materials, other than normal household items stored outside.
The Board found this requirement to be satisfied.
.4 The emission of noxious, odorous matter across lot boundaries in such quantities as to be offensive to persons of ordinary sensibilities is prohibited; and
The accessory apartment will not give emission of noxious, odorous matter.
The Board found this requirement to be satisfied.
.5 No discharge into any private sewage disposal system, or stream or into the ground of any materials in such nature or at such temperature as to contaminate any water supply or otherwise cause the emission of dangerous or unhealthful elements is permitted, and no accumulation of solid waste conducive to the breeding of rodents or insects shall be allowed. [Amended, effective 12/2/86]
The proposed accessory apartment will have an approved septic system that will not contaminate any water supply.
The Board found this requirement to be satisfied.
Mr. Manahan motioned to approve the application for a special exception for an accessory apartment at 125 Bruce Hill Road on Map 05 Lot 42B in the Rural Residential 2 District.
Mr. Copp seconded. Vote: UNANIMOUS
Mr. Wyman stated the special exception had been granted and to work closely with Ms. McPheters.
2. Michael W. and Molly M. Washo request a special exception to operate a nursery school at 20 Crestwood Road on Map U13 Lot 46 in the Medium Density Residential/ Setback Overlay 2 (MDR/SO2) Districts.
Ms. McPheters presented background information as follows:
The Board approved a special exception for a daycare home occupation on August 14, 2003 with the following conditions of approval:
1. The daycare home will provide before and after school care for six (6) children.
2. The hours of operation will be Monday through Friday from 7:00 a.m. to 5:30 p.m.
3. The daycare will operate during the school calendar. It will be open for school vacations and snow days. It will not be open during the summer months.
4. There will be no sign.
5. There will be no employees.
The applicant is requesting permission to convert the previously approved day care home to a nursery school. The applicant is proposing a preschool program for up to sixteen (16) children. The school would be open Monday through Friday from 8:30 a.m. to 11:30 a.m. during the school year. The house is connected to the public sewer system. The Board may want to address available parking.
The board will note that state guidelines were included with your packet.
Ms. McPheters stated she had one letter in support of the application. This was distributed to the Board.
Mr. Wyman asked Ms. Washo to review her application.
Ms. Washo stated the change would better meet the needs of her family. She does not feel the daycare has disrupted the neighborhood. She has not heard any complaints from the neighbors. She will be going into business with Ms. Karen Bruder of 27 Crestwood Road. Ms. Bruder has the education, Ms. Washo has the space and so they will both operate the nursery school.
Mr. Wyman clarified the application definition.
Ms. Washo stated she had reviewed the video of my school nursery school, which is licensed as a daycare center.
Mr. Wyman asked if there were any other licenses needed.
Ms. Washo stated she would re-apply with the state to be licensed as a nursery school. The requirements are less than that of a daycare because the children are there for a shorter period of the day. There should be no problem obtaining a nursery school license.
Mr. Wyman: Are you requesting a sign?
Ms Washo: Yes, on the house (2x2) or flag, to identify the location. It will come down in the summer months.
Mr. Wyman: We typically deal with that separately. Is the house your current residence?
Ms Washo: Yes it is.
Mr. Wyman: This is part of the building?
Ms Washo: Yes it is.
Mr. Wyman: The floor plan that you've submitted is already in existence?
Ms. Washo: Yes it is.
Mr. Wyman: Is there a request for other employees?
Ms. Washo: No.
Mr. Wyman asked the Board if they had any questions for the applicant.
Mr. Turner asked if they were planning on having more than one session per day.
Ms Washo stated the license allows for two sessions, but they are not interested in offering an afternoon session. Ms. Bruder and I have 7 children between us and we feel that our time is better spent in being active in our children"s lives. We also feel that the afternoon is not a productive time of day for preschoolers.
Mr. Turner: Do you feel that your new operation will have less of an impact on your home and neighborhood than the one you are running now?
Ms. Washo stated she does not feel that the new business will adversely affect the neighborhood. We have carefully thought out drop off and pick up procedures to eliminate the need for off street parking. We would be greeting the children at their vehicle. They would not be blocking any driveways. We have allowed for a 15-minute window at the beginning and end of the session, so this may stagger the flow of traffic. We also believe that the hours of operation are at a time when the majority of the residences are already at work and school.
Mr. Manahan asked how big is the lot.
Ms. Washo: Stated that the lot is 23, 544 square feet.
Mr. Manahan: Section 408a.2.1. states that no daycare center or nursery school shall be located on a lot no less than 24,000 square feet in area.
Ms. McPheters: The ordinance does state that this section does apply.
The Board discussed the requirements of Section 409a.2.1.
Mr. Wyman asked if a variance could be granted.
Ms McPheters stated a variance had not been advertised.
Ms. Washo stated that she and Ms. Bruder did bring this issue to Ms. McPheters attention. They would have been happy to apply for a variance at that time.
Mr. Wyman stated, There is nothing in the state regulations requires minimum square feet from what I can see. Would that be accurate?
Ms. McPheters answered she believed that the square foot they require is inside the house, but would need to verify that.
Mr. Wyman asked if the 16 children include her own children.
Ms Washo answered no. The state requires 35 square feet per child for inside.
Mr. Wyman: We have a pretty accurate reflection of the lot size. I dont want to move forward without an application for a variance with a public notice. From historical purposes, when a petitioner comes forward with a variance, its up to the petitioner to prove to the Board that the variance is necessary and meets the letter of the ordinance. With a special exception, use is tantamount to a permitted use. The Board determines that the use will comply with criteria in Sections 603.2 and 603.7.
Mr. Wyman: We will now take public testimony. As you come forward to speak, use the ditto rule if applicable, as there are a significant number of people in the audience.
Karen Bruder, 27 Crestwood Road, Ms. Washos business partner. I will go into a bit more detail of what Ms. Washo and I have proposed and the ways we have tried to mitigate any impact to the neighborhood. Members of the audience will bring up their concerns regarding traffic flow; we would like to share with you how we propose to make that as seamless as possible. We have a parent guide that we have developed. There is a specific section that is dedicated to arrival and dismissal procedures. I have a copy if the board would like to see. We are proposing that children have a 15-minute window 8:30-8:45am to arrive, thus staggering the traffic flow, and essentially children could arrive up until 9am. 8:30-9:00am is free play. The cars will come into the neighborhood from the lower end of Crestwood and drop their children off curbside for pick-up. Molly or I will be meeting students at the end of driveway and escorting them in. We feel that this will be a good way to satisfy the needs of the neighborhood and eliminate any parking issues. Cars would then exit through the top entrance at Pinewood. We have allowed for circumstances where the parent does want to accompany their child into the school we are asking that they park in the overflow driveway. We plan on conducting 3 special events. Between Mollys 2 driveways and my driveway we can accommodate up to 14 vehicles. We recognize, understand and appreciate the neighbors concerns. Safety of neighborhood is important to both Molly and I. We do not wish to do anything that would jeopardize the safety of the neighborhood children. We do not feel there is going to be a significant impact on the neighborhood with regards to cars. In our research and planning we found there are only 3 licensed nursery schools in this area. There are 162 kindergarteners enrolled in the 2004-2005, with only 3 preschools, there certainly is a need. We would appreciate the Boards approval at this time or another time.
John Ames of 23 Pinewood Drive abuts on the rear of Ms. Washos property. Ive known Molly since she was a preschooler; in fact, one of my sons was her preschool teacher. I see no objection at all to having the school there. The activity in the back yard will not increase any, and the kids are in a safe area for playing.
Mike Washo of 20 Crestwood Drive stated there is roughly a 1000 square foot easement on the southerly side of the property.
Board asked if it was a driveway easement?
Mr. Washo answered yes.
Robert Bruder of 27 Crestwood Drive restated some of what Karen said. I would like the board to really focus on what this brings to the community. These individuals have put a lot of time and energy to put together a program for area children.
OPPOSED:
Jim Poliquin of 23 Crestwood Drive lives across the street. Mr. Poliquin voiced concern regarding the traffic and the impact it would have on the neighborhood.
Carl Capello of 18 Crestwood Road also had concerns with traffic and neighborhood property values.
Tom Allen of 19 Crestwood Road lives directly across the street from Washos. Ive never objected to anything. Weve been here 11-years, it is a street with no traffic. The resale value of our home could be impacted by a nursery school in the neighborhood.
Raymond Clark of 15 Crestwood. He built a new house 5 years ago next to his parents who have been there 40 years. He is concerned with the increased traffic.
Richard Boscherini of 29 Crestwood Road, his house is next to the Bruders, and across from the field. Traffic is the biggest concern.
Written statements by Todd and Mary Grove in support of the nursery school were given to the Board.
Mr. Wyman closed the public hearing. The Board reserves the right to call you all back for further testimony. We will be speaking with the applicants further, but before we do that. He asked for comments from the board to have a sense on proceeding forward with this.
Mr. Turner: 24,000 square feet is mandated in the ordinance. In this neighborhood, there are other lots that would fulfill this minimum size. Given the history of the way nursery schools, etc have been viewed, based on what you had spoke earlier about the fact that a special exception is tantamount to a permitted use unless- what this means is that it throws the burden of proof onto the board as opposed to the applicant. In this situation if this were to go forward, we would have to, at a later date, consider a variance having to do with the lot size. The language is very specific in the ordinance referring to the 24,000 square feet. Obviously, when that variance is considered the burden is on the applicant. Under these circumstances, my own view is that we cannot go any further tonight.
Mr. Copp stated a variance is authorized only for height, area and size of structure or size of set back and lot coverage. It does not say anything as far as the use of the lot. He asked if an area variance would be allowable.
Ms. McPheters stated she interpreted that to be height area and size of the structure not the lot.
Mr. Wyman asked Ms. Washo if she wanted the Board to table her application, so she could decide if she wants to apply for a variance or withdraw the application. If we did act on it tonight, we would have to deny it, because it is less than 24,000 square feet Mr. Copp has brought up the issue if a variance would be allowed. If the Board moves forward, it will not be successful, and in which case you cannot come back for 12 months. You can ask us to table it until our next meeting, which will be in April, so you can do some further research. Or you can withdraw your petition.
Ms. Washo asked to have her petition tabled. She wished she had known about the variance when she asked about the lot size. I could have saved a lot of time. Do I have an opportunity to clear up any issues brought to you by the opposing people?
Mr. Wyman stated the Board was going to table the application and have a more complex review. There is a lot more that needs to be done here. For future discussion, one of the subjects that comes up which is difficult for us, and members of the public on both sides, is that change occurs. Change is bound to happen. That is why we specifically talk about its specific use. Traffic is a big issue with this neighborhood. Also concerns regarding value of property. As we further look at this, it is not unlike this board to make recommendations and provide limitations in the event something moves forward.
Mr. Turner motioned to table Ms. Molly Washos request for a special exception to operate a nursery school at 20 Crestwood Road on Map U13 Lot 46 in the Medium Density Residential/ Setback Overlay 2 (MDR/SO2) Districts.
Mr. Turner reiterated the Boards requirement to comply with the Town Zoning Ordinance.
Mr. Manahan seconded Vote: UNANIMOUS
D. Administrative Matters
Ms. McPheters: Minutes are unavailable from the last meeting.
Ms. McPheters: I do have a letter for the Boards review regarding the cellular tower case that was heard at the last meeting. There is an attached letter from the Towns attorney. The Town attorney did further review of the ordinance on Section 433.4. The proposed height expansion would be approximately 9 feet, well below the 30-foot limitation established by the Ordinance. As long as the additional height does not require lighting or obstruction painting, the applicant may proceed directly to site plan review of the alteration of the tower without the need for action by the Board of Adjustment and Appeals. The Town attorney reversed their original decision based on further review. The applicant has been advised to proceed to the Planning Board.
Mr. Wyman asked if there was any other order of business.
Hearing none moved to adjourn
Seconded Vote: UNANIMOUS
A TRUE COPY ATTEST
________________________ ______________________
R. Scott Wyman, Board Chair Nancy Decker, Board Clerk
