Town of Cumberland, Maine - Board of Appeals Minutes 6/10/2004

Present:        Scott Wyman-Board Chair, Ron Copp, George Turner, Adrian Kendall, and Michael Martin
Absent:         Andrew Black, Matthew Manahan
Staff:          Bill Longley, Alternate Code Enforcement Officer, Nancy Decker, Board Clerk

Mr. Wyman welcomed the applicants and gave an overview of the procedures and order of the meeting.

C. Hearings and Presentations:

1. Philip W. Vance requests a special exception to operate a medical supply home occupation at 5 Hallmark Road, Tax Assessor Map U05A, Lot 47, in the Low Density Residential District (LDR).

Mr. Longley gave an overview of the application. His questions to the applicant were how many employees are there and who is running the business?

Mr. Beecher an employee of Continue-Med, answered that Mr. Vance runs the business with his help. Mr. Beecher works from his home in South Portland and once a week goes to the Vance's home to pick up mail. There is one other part time employee.

Mr. Wyman asked if the applicant could answer a few questions.

Mr. Vance approached the podium.

Mr. Wyman asked if this business operated in the home.

Mr. Vance stated yes.

Mr. Wyman asked how many employees worked at the home.

Mr. Vance stated none at this location.

Mr. Wyman asked if the applicant was the president of the business.

Mr. Vance stated yes.

Mr. Wyman asked if it was the intent of the applicant to have employees at this location.

Mr. Vance stated no.

Mr. Wyman asked if there was a sign and if so, what is the intent of use.

Mr. Vance stated yes there is a sign and the intent is for Medicare representatives to locate the home if need be.

Mr. Wyman asked if customers go to the home.

Mr. Vance stated no.

Mr. Wyman asked about deliveries such as FedEx and UPS.

Mr. Vance stated deliveries are not more that average.

Mr. Martin asked why there is the need for a sign if there are no customers going to the location. Who will be reading the sign?

Mr. Vance excused himself stating he was not feeling well and asked that his wife continue for him.

Mrs. Vance stated that she does the administrative work for the business. Medicare requires a sign to be in compliance with their rules and regulations. A sign must be posted in the off chance a representative from Medicare or a customer comes to the home.

Mr. Wyman asked what portion of the business is done off site.

Mrs. Vance stated they have a storage unit in Scarborough used to store the equipment, which Mr. Beecher maintains. Mrs. Vance also stated that 99.9% of the work done at this home is administrative.

Mr. Wyman asked what the hours of operations are?

Mrs. Vance stated Monday thru Friday 8am-4pm. Closed Saturdays and Sundays.

Mr. Wyman stated that the real reason they are here tonight is so that the Code Enforcement Officer can write a letter to Medicare stating that Continue-Med is a viable operating business and that the business is in compliance with all town ordinances.

Mrs. Vance stated yes.

Mr. Copp asked how long the business has been in operation at this location.

Mrs. Vance stated 2 years. The office was in Portland, however, when her husband became disabled, they had to shut that office down.

Mr. Kendall asked where the two employees work.

Mrs. Vance stated that they work out of their own homes. Mr. Beecher lives in South Portland and Janice lives in Saco.

Mr. Kendall asked for more information regarding the storage space.

Mrs. Vance stated it was in Scarborough. It is a facility they rent to store the medical equipment. They mostly deal with respirators and oxygen. The space is leased.

Mr. Kendall asked Mrs. Vance to explain how Continue-Med actually works.

Mrs. Vance explained the business.

Mr. Kendall asked if the business advertises.

Mrs. Vance stated that it is all referrals.

Mr. Kendall asked if the referrals came to the home.

Mrs. Vance stated that they are doctors; they do not come to the home.

Mr. Kendall questioned the sign being placed behind the storm door versus on the front of the door.

Mrs. Vance stated that they want to attach it to the house near the door.

Mr. Wyman opened the public portion of the meeting.

Mr. Beecher spoke in favor of the applicant. He stated that he was an employee. He works from his own home in South Portland. He visits the Vance"s home once a week
to check the mail.

Mr. John Flaniken of 10 Hallmark Road spoke in opposition of the applicant. He stated that he bought a house in a residential neighborhood. He did not think it was appropriate to have a retail establishment on a residential street.

Mr. Wyman asked him if his concern was the traffic.

Mr. Flaniken stated it was not only the traffic but also the sign.

Mr. Martin asked for a description of the activity being observed by Mr. Flaniken.

Mr. Flaniken stated he saw cars at 5 Hallmark Road other than the owners. He also sees the delivery trucks.

Mr. Martin asked how frequently?

Mr. Flaniken stated he worked, so he did not know what the flow was during the day, however, in the afternoon there could be 1-2 cars at the property. He also stated that he did see the delivery trucks on the street, but noted that they did make other stops on Hallmark Road. He stated he thought they were selling the medical supplies from their home.

Mr. Martin asked if he saw supplies?

Mr. Flaniken stated no, he did not see medical supplies.

Mr. Kendall asked if he knew for a fact that these cars were the cars of customers?

Mr. Flaniken stated he did not.

Mrs. Flaniken also spoke in opposition. She stated: "Cumberland Foreside is one of the most exquisitely beautiful neighborhoods in the world and it is my neighborhood. It is with great disbelief and sadness that the board is even considering this exception. The truth of the matter is the referenced individual brazenly posted a business hours sign on his door months ago and it has remained displayed ever since, 24 hours a day 7 days a week. I do not want my neighborhood streetscape, property value, and quality of life destroyed by this individuals illegitimate business. My Foreside neighborhood is no place for this or any other commercial business. Please vote NO on this request.
She further stated that the residence generates 3-4 barrels of garbage a week. She is not sure what they are throwing away; she is concerned it may be medical waste. She believes the business has been there longer than 2 years.

Mr. Turner spoke on a neutral basis. He is an abutter in the rear (Carriage Road). This is tantamount to a permitted use in this district. Residents need to realize that this type of business is a permitted use in this zoning district. He has seen other businesses granted special exceptions that would have a far more detriment to a neighborhood than what the Vances are doing.

Mr. Wyman closed the public portion of the meeting.

Mr. Kendall asked Mrs. Vance about the above-mentioned waste.

Mrs. Vance stated she has a lot of trash. Most time the bags are half empty so the cans are not heavy. There is no medical waste in the trash.

Mr. Wyman reviewed the Home occupation standards with the applicant:

.1 The occupation of an office will be managed by a member of the family residing within the dwelling unit. Up to two employees who are not members of the family may be employed in a home occupation, and;

Mrs. Vance stated it would be managed by her husband, Philip Vance.

.2 The occupation or office will be located wholly within the principal or accessory structures, and;

Mrs. Vance stated yes.

.3 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; and

Mrs. Vance stated yes.

.4 Noise, vibration, smoke, dust, electrical disturbance, odors, heat, or glare will not be detectable beyond property limits, and;

Mrs. Vance stated there will none of the above.

.5 Off-street parking spaces will be provided in an amount to be determined by the Board as necessary to avoid street congestion.

Mrs. Vance stated there is not a need for parking as there are no employees or customers.

414.2 The granting of a special exception approval for a home occupation shall apply to the applicant only while the applicant resides at the property.

The Board found this requirement to be satisfied.

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;

Mrs. Vance stated it would not.

.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;

Mrs. Vance stated it would not.

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

Mrs. Vance stated it will not.

.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;

Mrs. Vance stated yes.

.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;

Mrs. Vance stated it would not.

.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;

Mrs. Vance stated it does not.

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

Mrs. Vance stated it will not.

.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;

Mrs. Vance stated it would not.

.2 Vibration inherently and recurrently generated shall not exceed a peak particle velocity of .01 inches per second at lot boundaries;

Mrs. Vance stated no.

.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;

Mrs. Vance stated no.

.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

Mrs. Vance stated no.

.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]

Mrs. Vance stated no.

Mr. Copp stated that the sign looks to commercial. It should fit in with the aesthetics of the house and neighborhood.

Mr. Martin agreed with Mr. Copp with regards to the sign.

Mr. Black also agreed stating the sign should be limited in size to two (2) square feet and the sign should be attached to the house.

Mr. Copp made a motion to grant a special exception to operate a medical supply home occupation at 5 Hallmark Road, Tax Assessor Map U05A, Lot 47, in the Low Density Residential District (LDR) in the name of Philip Vance with the following conditions:

1.      The sign present must be limited to 2 square feet.
2.      The sign should be appealing and not commercialized.
3.      The sign should be attached to the house.

Mr. Kendall seconded.
Vote: Unanimous

Mr. Longley reviewed:

2. Daniel and Beryl Fossett request a variance of fifteen (15) feet from the twenty five (25) foot rear setback requirement for a garage to a single family dwelling at 6 Union Road, Tax Assessor Map U20, Lot 25, in the Medium Density Residential District (MDR).

Mr. Copp recused himself, as he is Mr. Fossetts employer.

Mr. Wyman asked if Mr. Fossett had an existing deck.

Mr. Fossett stated yes. It is 11 feet from the rear property line.

Mr. Kendall asked if the front is located on Union Street?

Mr. Fossett stated yes. The lot has two corners, Lake Street and Parker Road. Parker Road is a paper street.

Mr. Kendall asked about the extra foot considering Mr. Fossett already has an 11-foot buffer.

Mr. Fossett stated he wanted to keep the width of the driveway the same.

Mr. Kendall asked about the current ½ car garage.

Mr. Fossett stated it was only a one-car garage. The dimensions were 14x18 feet.

Mr. Wyman stated the rear setback appears to be the issue. The deck is already in the 11- foot encroachment.

Mr. Wyman opened the public portion of the meeting.

Mr. Copp spoke on a neutral basis. He stated that this area is very similar to the way Wildwood was built. The lots are very small. There are several abandoned paper streets within this neighborhood as well.

Mr. Wyman closed the public portion of the meeting.

Mr. Longley read Section 501.1.1 of the ordinance.

.1 Repairs and Alterations: A nonconforming building or structure may be repaired, altered, improved, or reconstructed. A non-conforming building or structure may be added to or expanded after obtaining a permit from the same permitting authority as that for a new structure, if such addition or expansion does not increase the non-conformity of the structure or expand the area of a non-conforming use. The number of square feet of floor area devoted to the nonconforming use may not be increased, unless the Board of Adjustment and Appeals finds that the proposed expansion of the nonconforming use will not adversely affect other property in the same district and neighborhood and that the granting of such approval by the Board will not substantially depart from the intended purposes of this ordinance. [Amended, effective 3/24/03]

Mr. Martin stated that this was a not a non-conforming use issue, but a non-conformity with the setbacks.

Mr. Kendall stated he was asking for 1 foot plus the expansion.

The Board discussed the ordinance.

Mr. Kendall asked Mr. Fossett when the garage was built?

Mr. Fossett stated it was the original garage built in the 1940s. There was a house fire
and the house was rebuilt in 1972.

Mr. Kendall asked Mr. Fossett if he planned to connect the garage to the home.

Mr. Fossett stated yes. He was aware of the variance to connect to the house.

Mr. Kendall asked if he was also aware he needed the variance for the deck.

Mr. Fossett stated yes.

Mr. Kendall asked what the economic injury would be if the applicant cannot connect

the garage to the house or expand the deck.

Mr. Fossett stated that an 8x8 deck is extremely small for a family. The house is a 24x40 ranch style home. They feel that a breezeway will add additional storage space and they would not have to walk outside to get to the garage.

Mr. Turner asked how far away the abutters house was from the Fossetts garage.

Mr. Fossett stated that it was about 100 feet.

Mr. Wyman asked about Parker Street.

Mr. Fossett stated it was a paper street. It is wooded with a power line running down it.

Mr. Wyman reviewed the practical difficulty standards with Mr. Fossett:

A. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;

Mr. Fossett stated that it is due to the size of the lot.

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;

Mr. Fossett stated it will not.

C. The practical difficulty is not the result of action taken by the applicant or a prior owner.

Mr. Fossett stated no, it is due to the size of the lot.

D. No other feasible alternative to a variance is available to the petitioner;

Mr. Fossett stated there is no alternative other than keeping the garage and breezeway a few inches from the house.

E. The granting of a variance will not unreasonable adversely affect the natural environment; and

Mr. Fossett stated it would not.

F. The property is not located in whole or in part within the shoreland areas as described in Title 38, Section 435.
The Board found this requirement to be not applicable.

Mr. Wyman asked how Mr. Fossett would be economically injured because of this?

Mr. Fossett stated that he could still build the garage, where he wanted it, as long as it
was not attached. Technically he could attach a breezeway as well. And as long as it
is not touching the house he would be fine. He does not feel that would add value to
his home or aestetically look pleasing to the neighbors.

Mr. Kendall asked what was planned for above the garage.

Mr. Fossett stated it would be open and used for storage. There will be stand up space.

Mr. Turner stated that the significant economic injury would be that these lots are very small and by not being able to add to their properties would not enhance the value of these homes. Mr. Turner read one of the conditions: 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;
If Mr. Fossett leaves the garage separate from the home it is far less valuable than if he can connect the garage to the house via a breezeway. If we allow him to attach his garage it is aesthetically pleasing to the look of the house and would be more valuable to the neighborhood.

Mr. Kendall disagrees with Mr. Turner. He stated that there is a principal building and an accessory building. There are two different standards that the Town Council adopted and they are specific to addressing each of these items. An accessory building where people are not living can be placed much closer to the setbacks. You cannot do that with the principal structure. The applicant is asking us to grant a variance that converts that accessory structure into a principal building. The standard is to not allow for this unless the applicant can show economic injury. He does have other alternatives. As soon as he attaches these two structures, nothing will preclude him from putting an addition over the garage for living space. The solution is to increase the size of his garage without attaching.

Mr. Turner stated that he does not feel that the Council interpreted the ordinance in the way Mr. Kendall is referring. Further stating that to enact ordinances that encourage a less desirable and a less taxable situation via these structures does not make any sense.

The Board discussed accessory structures versus principle structure uses and setbacks.

The Board discussed the overlay district setbacks.

Mr. Wyman asked the applicant if it was his intent to include the breezeway, garage and deck in this application.

Mr. Fossett stated yes and referred the Board to the building permit.

Mr. Longley stated that Mr. Fossett did include the deck and breezeway with the original application.

Mr. Turner stated that the foot he is asking for could be diminimus compared to what is already there.

Mr. Martin motioned to grant Daniel and Beryl Fossett a variance of fifteen (15) feet from the twenty five (25) foot rear setback requirement for a garage, deck and breezeway to a single family dwelling at 6 Union Road, Tax Assessor Map U20, Lot 25, in the Medium Density Residential District (MDR).

Mr. Copp seconded.

Vote: 3
Opposed: 1 (Mr. Kendall)

3. Roy Crowley and Betty Olivier request a variance of fifteen (15) feet from the seventy-five (75) foot rear setback requirement for a garage to a single family dwelling at 16 Oak Ridge Road, Tax Assessor Map R06A, Lot 9 in the Rural Residential 2 District (RR2).

The application was not heard by the Board because the applicant will adhere to the current setbacks of the RR2 District.

Mr. Longley reviewed:

4. Thomas Farrington and Todd Reagin request a variance of thirty-five (35) feet from the seventy-five (75) foot rear setback requirement for an above ground pool to a single family dwelling at 221 Bruce Hill Road, Tax Assessor Map R08A, Lot 67 in the Rural Residential 2 District (RR2).

The Board reviewed the setbacks in this zone in addition to the ordinance that pertains to swimming pools.

Mr. Farrington addressed the Board. He stated that there is not another area on the property to put the pool. If you are looking at the house there is a shed to the left of the house. To the left of the shed there is pond. There is adequate space in the front yard.

The Board reviewed the aerial photo submitted by the applicants.

Mr. Farrington stated that the house is 80 feet off the road.

Mr. Reagin stated there was a letter from the rear abutter.

Mr. Wyman asked if the shed is used.

Mr. Farrington stated the shed was built with the house in 1967. It is about the size of a 1-½ car garage and is used for storage.

Mr. Wyman asked about the section of the lot between the shed and the house.

Mr. Farrington stated the septic system is in that corner of the house.

Mr. Wyman asked the size of the pool.

Mr. Farrington stated it was 30 feet.

Mr. Martin asked how deep it was?

Mr. Farrington stated it was 52 inches deep.

Mr. Martin asked how tall the walls are.

Mr. Farrington stated that the sidewalls are about 48 inches.

Mr. Wyman asked if there were any therapeutic needs.

Mr. Farrington stated no.

Mr. Wyman opened the public portion of the meeting. No comments. Closed.

Mr. Wyman read the letter from Karen Morton of 217 Bruce Hill Road, the rear abutter. The letter stated she had no issues with the applicants deck and pool.

Mr. Wyman reviewed the practical difficulty variance with the applicants:

A. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;

Mr. Farrington stated yes.

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;

Mr. Farrington stated that it would not.
C. The practical difficulty is not the result of action taken by the applicant or a prior owner.

Mr. Farrington stated it was due the prior owner subdividing the lot.

D. No other feasible alternative to a variance is available to the petitioner;

Mr. Farrington stated no there was not.

E. The granting of a variance will not unreasonable adversely affect the natural environment; and

Mr. Farrington stated it would not.

F. The property is not located in whole or in part within the shoreland areas as described in Title 38, Section 435.

The Board did not find this requirement to be applicable.

Mr. Kendall asked what the economic injury would be.

Mr. Farrington stated that they bought this home on this large piece of land with the intent of putting a pool in the yard. According to a plot plan, it appeared they had plenty of space to build the deck and pool. There is a pond on the property, which does limit where the pool can be located.

Mr. Farrington reviewed the plot plan with the Board. The Board retained the copy to be copied by the Codes office and then returned to the applicant at a later date.

Mr. Wyman asked when the home was purchased.

Mr. Farrington stated April 2002.

Mr. Farrington knew the parcel had been split; this is why he had asked for this plan to make sure he had the space out back.

Mr. Kendall inquired about obtaining a deed from the rear abutter for the 30-foot variance.

Mr. Farrington feels that the abutter would not do this. The abutter will be further subdividing that lot to build another home. Mr. Farrington did say that the rear abutter gave him a verbal okay to put the pool and deck closer to the rear property line than the setback requires.

Mr. Martin moved to deny Thomas Farrington and Todd Reagin a variance of thirty-five (35) feet from the seventy-five (75) foot rear setback requirement for an above ground pool to a single family dwelling at 221 Bruce Hill Road, Tax Assessor Map R08A, Lot 67 in the Rural Residential 2 District (RR2).

Mr. Copp seconded.
Vote: Unanimous.

Mr. Kendall stated there was no sign of economic injury in this case. The Board did not feel they met the practical difficult standards.

Mr. Longley reviewed:

5. Cheryl Speed requests a special exception to build a garage to a single-family dwelling at 50 Gray Road, Tax Assessor Map U16, Lot 2A in the Local Business District (LB).

Ms. Speed addressed the Board. She stated it was her intent to put a 28 x 30 garage on her property.

Mr. Wyman stated to the Board that due to the site being located in the Local Business Zone, the Board needs to approve this application.

Ms. Speed stated that the location of the garage would go over a portion an existing hole that was once an inground pool. The remainder of the hole will be filled.

Mr. Wyman stated that this issue was subject to the deed being recorded. He asked Mr. Longley if the plans were okay.

Mr. Longley stated that they were.

Mr. Kendall questioned why Ms. Speed is appearing before the Board when the ordinance states that this is an acceptable use within the LB district. He noted Section 204.6.1.10- Buildings accessory to single family dwellings.

Mr. Wyman opened the public portion of the meeting.

Mr. Jenson of 283 Range Road spoke in favor of the applicant. He is the abutter who is deeding Ms. Speed the land she needs to build her garage.

Mr. Wyman, seeing no other public comments, closed the public portion.

Mr. Wyman reviewed the Special Exception standards in Sections 603.2.3 and 603.2.7 with the following findings and conclusions.