Town of Cumberland
Board of Adjustment and Appeals
Minutes of Meeting
April 8, 2004
A. Call to Order
The meeting was called to order at 7:00pm
B. Roll Call
Present: R. Scott Wyman, Ron Copp, George Turner, Matt Manahan, Adrian Kendall, 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.
C. Hearings and Presentations:
1. The Town of Cumberland requests a special permit for a gravel pit at Goose Pond Road on Map R07 Lot 48 in the Industrial (I) District.
Ms. McPheters presented background information as follows:
The applicant is requesting approval of the annually renewable special permit to operate a gravel pit as a municipal use. The Town Manager, Bill Shane will be representing the Town in this request. The Board is requested to approve the one-year, annually renewable special permit as allowed in Section 410.1. At the March 16, 2004 Planning Board meeting, the applicant received a favorable advisory recommendation. A copy of the recommendation is included as part of the submittal. The question of requiring a surety bond is not applicable in this instance because the Town of Cumberland will not issue a surety bond to itself.
The Board will need to determine that the use will comply with the Extraction of Earth Materials regulation as stated in Section 410 of the Cumberland Zoning Ordinance:
Section 410 Extraction of Earth Materials
410.1 Top soil, rock, sand, gravel and similar earth materials may be removed from locations where permitted under the terms of this Ordinance only after the granting of a one year, annually renewable special permit for such operations as may be issued by the Board of Adjustment and Appeals and under such terms and conditions as may be approved and provided for by the Board and as provided for in this Ordinance.
410.3 Standards:
.1 The operation shall be shielded from surrounding property by an adequate buffer area of not less than 200 feet from the top of the final grade to the property line, except that the Board of Adjustment and Appeals may reduce the buffer area from the minimum requirement of two hundred (200) feet to a minimum requirement of not less than one hundred (100) feet provided that any excavated property remaining will be left in a condition more useful for some future purpose conforming to the district requirements in which the excavation site is located.
The property is bordered on all sides by gravel pits. The common boundaries have been excavated with no buffers as allowed in the original site plan approval that was drafted by the Town Attorney.
The standards of this section have been met.
.2 An applicant may specifically apply as a part of his application for the excavation and removal of lands to the Board of Adjustment and Appeals for waiver of the requirement of the 200 foot buffer strip when the protective barrier serves only to separate two existing gravel pits. The Board of Adjustment and Appeals may only grant a waiver from this requirement of the Ordinance if (1) the protective buffer zones exist only between two existing gravel pits, (2) the owner of the respective properties mutually and voluntarily consent to the removal of the buffer zone, and (3) the Board of Adjustment and Appeals find that it shall not have a detrimental effect upon adjoining properties.
The Board determined this standard did not apply.
.3 Specific plans shall be established to avoid hazards from excessive slopes and/or standing water. In no case may soils be removed or excavated to closer than within five (5) feet of the seasonal high water table as may be determined by a competent authority. Where an embankment must be left upon the completion of operations, it shall be at a slope of not steeper than one (1) foot vertical to three (3) feet horizontal, except that where the required buffer area has been reduced to 100 feet the slope of the edge of the excavation area shall not exceed one (1) foot vertical to four (4) feet horizontal.
There are monitoring wells on the property and the soil is not excavated to closer than within five (5) feet of the seasonal high-water table.
The standards of this section have been met.
.4 No standing water shall be allowed to remain longer than two consecutive calendar weeks unless specifically provided for by the Board of Adjustment and Appeals.
There is no standing water in the pit, any standing water is melting snow and ice and does not remain longer than two consecutive calendar weeks.
The standards of this section have been met.
.5 In the case of any excavation to a depth of more than 20 feet below the surface there shall be constructed a substantial fence with suitable gates completely enclosing the property or area in which the excavation is located. No portion of such fence shall be located closer than forty feet to the edge of such excavation. However, this condition shall not apply in the case of an excavation or removal of lands adding a slope of one-foot vertical to greater than 3 feet horizontal.
There is a berm along Goose Pond Road until the woods line, the entrance is cabled and the other access is gated.
The standards of this section have been met.
.6 No excavation shall be extended below the grade of adjacent streets unless a 200-foot buffer strip shall be provided from the edge of the right-of-way except in cases where a specific condition has been made with the consent of the Board of Adjustment and Appeals and other involved parties such as the Cumberland Highway
Department, Maine State Department of Transportation and other property owners for the reconstruction of the right-of-way and street at a different level.
The elevation is not below the adjacent streets.
The standards of this section have been met.
.7 Provision shall be made for the control of stormwater runoff to prevent on-site erosion, and to ensure that stormwater runoff leaves the site at the same location and is not significantly increased.
The stormwater pit is internally drained. There is no off site impact.
The standards of this section have been met.
.8 Sufficient topsoil shall be retained on the site or otherwise provided sufficient to cover all disturbed areas with an average depth of not less than two (2) inches. All disturbed areas resulting from the excavation and removal of lands or soils shall be graded and sloped to conform to the provisions of this Ordinance, reloamed and seeded with grasses indigenous to the area and such trees as the Board of Adjustment and Appeals may require and otherwise restored to a natural condition. In the case of topsoil removal, the upper six inches of topsoil shall be stockpiled and restored to a depth of six (6) inches throughout the site.
The Board determined this standard did not apply.
.9 Loaded vehicles shall be suitably covered to prevent dust and contents from spilling or blowing from the load.
Based on testimony from the applicant all trucks are covered with tarps. There will be no dust and contents spilling or blowing from the load.
The standards of this section have been met.
.10 All access roads leading from the extraction site to public ways shall be treated with stone, calcium or other suitable materials to reduce mud and dust.
The applicant has not used calcium, there have been no complaints of dust, the exit surface is re-claim pavement.
The standards of this section have been met.
410.4 A surety bond shall be posted with the Town Treasurer by the applicant in an amount and form approved by the Board of Adjustment and Appeals with the advice of the Town Manager sufficient to guarantee performance and conformity with the provisions of this Ordinance and approval of the special permit for the excavation and removal of lands.
The Board determined this standard did not apply.
410.5 The foregoing provisions shall not apply to any lawful use of land for the removal of sand or gravel and the quarrying of stone, existing at the time of adoption of this Ordinance provided, however (a) that no such existing operation shall expand closer to or within two hundred feet to any adjoining property line or to the line of any existing public way, (b) that no such existing operation which may be within two hundred feet to any such adjoining property line or the line of any existing public right-of-way shall be permitted to expand closer to such line or lines, and (c) existing restrictions as may have been previously provided for previous approvals shall continue in full force and effect, and (d) further provided the Board of Adjustment and Appeals shall have the authority to approve applications for the expansion of such existing pits or quarries into such areas, under the same terms and conditions as it may approve applications for new gravel pits and quarries for the excavation and removal of lands pursuant to the provisions of this ordinance.
The Board determined this standard did not apply.
410.6 This subsection shall not apply to (a) extraction necessarily incidental to construction, alteration, excavation, or grading for which a building permit has been issued, (b) to extraction from one portion of a lot for use on another portion of the same lot, or contiguous lot of the same owner, or (c) removal of topsoil from a site that is less than one acre in area during a one-year period.
The Board determined this standard did not apply.
410.7 Violations of this section of the Ordinance shall be punishable by a fine as established by order of the Town Council. Each day such violations are permitted to continue to exist shall constitute a separate violation. [Amended, effective 9/1/98]
The Board determined this standard did not apply.
Mr. Wyman asked if there were any issues with buffers.
Mr. Shane stated there were none.
Ms. McPheters concurred.
Mr. Wyman asked if there were any questions from the Board.
There were none.
Mr. Wyman asked if there were any questions, comments or concerns from the public.
There were none. Mr. Wyman closed the public portion of the meeting.
Mr. Manahan made a motion to grant The Town of Cumberland a special permit for a gravel pit at Goose Pond Road on Map R07 Lot 48 in the Industrial (I) District.
Mr. Black seconded.
VOTE: UNANIMOUS.
2. Chris Larson requests a special exception for an accessory apartment at 108 Field Road on Map R07B Lot 6A in the Rural Residential 1 (RR1) District.
Ms. McPheters presented background information as follow:
The applicant has not provided a floor plan for the proposed apartment. The existing three-bedroom dwelling has 2,158 square feet of living area according to the assessment records. The allowable 40% of that area would be 863 square feet. The calculated 864 square feet of the apartment appears to exceed the maximum 40% allowed by the ordinance by one square foot. The existing home has a 4-bedroom septic system that was installed in 1990.
Ms. McPheters stated that these were outside dimensions.
Mr. Wyman asked about a proposed drawing.
Mr. Larson submitted the floor plan for the Boards review.
Ms. McPheters stated that anything that is submitted tonight by the applicant becomes town property and will stay in the file for future reference. Mr. Larson can feel free to come to the office if he needs a copy of what is submitted.
Mr. Larson stated that the location is in an existing barn. The barn is 33 feet from the main structure. There is a 3-car garage below in the barn.
Mr. Wyman asked if the stairwell was internal or external.
Mr. Larson stated it was internal.
Mr. Wyman reviewed Section 407 of the Cumberland Zoning Ordinance with the applicant:
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 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 RR1 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.
Section 602.2.3
.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 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. Copp asked about the septic and if this apartment was going to be rented?
Mr. Larson stated that the septic is connected to the house system and this apartment was to be used for his daughter.
Mr. Black asked if this is an approved subdivision.
Mr. Larson stated it is an approved subdivision by the Town of Cumberland Planning Board. He was the developer.
Mr. Manahan asked if all conforms to the back lot ordinance. He also addressed the issue of setbacks.
Mr. Larson reiterated that there is 33 feet between the barn and the house. He also stated that the lots in this subdivision cannot be further divided.
Mr. Manahan asked what the calculations were.
Mr. Larson stated the outside dimensions were 24 x 36 (800 square feet); the house is 2300 square feet.
The Board discussed the plan that Mr. Larson submitted.
Mr. Turner discussed living space = wall/wall within the house; outside dimension equals another number and each room = another figure. Also stating that it should be done the same way.
Ms. McPheters stated that the Assessor bases measurements on the outside, actually adding space.
Mr. Wyman made comment to another applicant with regards to a stairwell as living space.
Mr. Manahan remarked that it is difficult to act on this application without having dimensions.
Mr. Black asked how many bedrooms there were.
Mr. Larson stated there were 3 bedrooms.
Ms. McPheters stated that the assessor card appears to be wrong. He does have additional living space.
Mr. Wyman stated that the inside difference is 4 feet and that he has the additional square footage he needs.
Mr. Wyman asked if there were any members of the public who wished to speak in favor, opposition or neutral basis. None. Public portion closed.
Mr. Kendall made the motion to grant a special exception for an accessory apartment at 108 Field Road on Map R07B Lot 6A in the Rural Residential 1 (RR1) District.
Mr. Turner seconded.
Mr. Wyman stated that for findings and fact that the applicant has met all the criteria necessary under the special exception.
VOTE: UNANIMOUS.
3. Mary Pat Warming requests a special exception to operate a yoga instruction home occupation at 150 Gray Road on Map U19 Lot 6 in the Local Business (LB) District.
Mary Pat Warming is not present.
Mr. Manahan moved to table Mary Pat Warming' application.
Mr. Kendall seconded.
D. ADMINISTRATIVE:
February 12, 2004 minutes:
Mr. Black made a motion to approve the minutes for February 12, 2004 with technical corrections.
Mr. Manahan seconded.
VOTE: UNANIMOUS
March 11, 2004 minutes:
Mr. Manahan made a motion to approve the minutes for March 11, 2004 with technical corrections.
Mr. Copp seconded.
ALL IN FAVOR: 5
ABSTAINED: Mr. Black
Ms. McPheters asked the Board if they would consider moving the May meeting to May 6 rather than May 13. She reminded the Board that she will be out on leave as of May 10 and would prefer to miss only one meeting rather than May and June.
Mr. Wyman will not be able to attend.
Mr. Kendall will conduct the meeting in lieu of Mr. Wyman"s absence.
The Board is okay with moving the meeting to May 6.
Mr. Kendall moved to adjourn.
Mr. Manahan seconded.
VOTE: UNANIMOUS
A TRUE COPY ATTEST
_____________________ _____________________
R. Scott Wyman Nancy Decker
Board Chair Board Clerk
