Absent:     Mike Martin, Barbara McPheters, Code Enforcement Officer

Staff:       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.      Variance                                          Susan Gooch
                                                         199 Gray Road
                                                         Tax Assessor Map U20 Lot 70C

Mr. Kendall presented background information as follows: Susan Gooch requests an interpretation of Section 421 Street Construction standards, a variance of lot frontage requirements in Sections 204.6.3.4, 104.12 and 403.1 and a special exception for a duplex dwelling (tabled from previous meeting) at 199 Gray Road on Map U20 Lot 70C in the Local Business/Rural Residential 2/Limited Residential Shoreland Overlay (LB/RR2/LR) Districts.

The applicant is requesting the interpretation in order to create a backlot.  If the interpretation is not in the applicant's favor, the variance is requested due to the insufficient road frontage along Gray Road.  The applicant is also requesting approval of a two-family dwelling on a newly created six-acre lot.  Duplex dwellings are permitted by special exception in accordance with the zoning ordinance amendment effective December 25, 2002.

The Board will need to determine whether the decisions of the Code Enforcement Officer are in conformity with the provisions of this Ordinance, and interpret the meaning of the Ordinance in cases of uncertainty as required in Section 603.2.1 of the Zoning Ordinance.

The variance must comply with the undue hardship definition found in Section 104.138.  The special exception must comply with the criteria in Section 603.2.3 and 603.2.7.

Mr. Wyman stated he was not at the last meeting, but was Chair at the February meeting.  He had read the minutes and the file and was up to date with the information.

Mr. Peter Hatem, Attorney for Ms. Gooch stated he would present two requests, one for an interpretation of Section 421 and a decision consistent with Ms. McPheters letter of January 21, 2003.  Which stated if the lot had private way built to the standards of Section 421 the lot would be considered a backlot and would not require variance approval.

Mr. Manahan asked what Section 403.1 does to the frontage requirement.

Mr. Hatem stated it modifies it.

Mr. Manahan stated it doesn"t address the legality of the lot. The lot size requirement must be doubled and shall require a right-of-way no less than fifty feet wide.

Mr. Hatem stated the Code Enforcement Officers interpretation is consistent.  It appears the intent of Section 403.1 is to allow a specific exception within the Ordinance.  To interpret Section 403.1 to not intend to modify the frontage requirements would be contrary to prior practice of the Town.

Mr. Manahan stated that was a reasonable argument, but the introductory paragraph states single-family dwellings and duplex dwellings shall be permitted on backlots provided they are served by a private way meeting the Standards of Section 421 of this Ordinance subject to the following provisions: The Backlot definition in Section 104.12 states: A lot which does not abut or front on a public-right-of-way, and where access to the road is by a narrow, private right-of-way.  This lot abuts Route 100 and the question is whether Section 403.1 applies, and is this a back lot?

Mr. Hatem, stated the Code Enforcement Officers letter of January 21, 2003 states the property does not meet the frontage requirements and, as it stands, is an illegally created lot.  If they chose to develop a private way meeting the requirements of Section 421 of the Zoning Ordinance, the lot would be considered a backlot and would not require variance approval.  No dwelling unit (or duplex) could be built closer than 200 feet to Gray Road.  Special Exception approval from the Board of Adjustment and Appeals would be required for a duplex dwelling.  Mr. Hatem stated his client purchased the property with the understanding from Ms. McPheters letter of January 21, 2003 that the lot was buildable as a back lot.  

Mr. Manahan stated language in Section 403.1 does not require the right of way passage over someone elses property.

Mr. Hatem sated the current policy encourages the frontage on Route 100 to be separated and deeded to an abutter for a right of way over the property to allow construction in the back.

The Board reviewed the letter of January 21, 2003.

Mr. Manahan agreed the letter stated the lot was an illegal lot, but could be built on if the owner were to develop the lot as a back lot with a private way.

Mr. Turner asked Mr. Manahan if the Board should consider a private way synonymous with right of way.

Mr. Manahan stated he was not sure, a right of way gives a person the right to pass over someone elses property, and private way is a different term.

Mr. Kendall stated it appears Ms. McPheters was assuming a right of way and private way to be synonymous.   The applicant interpreted if they build a driveway to meet the standards of Section 421 than the lot would be a legal back lot.

Mr. Copp stated the seller should have maintained the road frontage and given a right of way to the applicant.  It has been the history of the Board to grant this type of back lot.

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

Mr. Wyman stated the Board was concerned the lot did not conform to the road frontage requirement of 150 feet at the time the lot was created.

Mr. Manahan asked when Mr. Gooch purchased the property.

Mr. Hatem stated after receiving Ms. McPheters letter of January 21, 2003.

Mr. Manahan stated he was inclined to grant the interpretation appeal based on the letter.

Mr. Copp and Mr. Turner agreed.

Mr. Black stated he was persuaded Section 403.1 creates something other than a back lot.

Mr. Kendall stated he agreed with Mr. Black that Section 403.2 addresses safe access through a private way as a consideration of the backlot.

The Board reviewed Section 403 Backlots with the following findings:
403.    Single-family dwellings and duplex dwellings shall be permitted on backlots provided they are served by a private way meeting the standards of Section 421 of he Ordinance subject to the following provisions:

403.1   The creation of a lot which does not have the required frontage on a public right-of-way shall require twice the minimum lot size for the district in which it is located, and shall require a right-of-way no less than fifty (50) feet wide, except that in no case shall such private right-of-way be required to be wider than the public right-of-way which it intersects.  Lots in Rural Residential districts 1 and 2 shall be exempt from the doubling of the lot size provision of this section.  &&.
The lot does not have the required frontage of 150 on a public right-of-way.  The lot will be twice the minimum lot size and will have a private way of no less than fifty feet wide, constructed to conform to the private way standards in Section 421 of the Ordinance. Prior to the applicants purchase of the property the CEO informed the applicant that the term "right-of-way in Section 403.1 is synonymous with the term private way used in the first paragraph of Section 403.  The Board does not see a reason to overturn that advice in this case.  Although the applicants lot does not meet the definition of a backlot, Section 403.1 does not by its terms require that the lot be a backlot to qualify for its exemption from the ordinances minimum lot frontage requirements.
The Board found the standards of this section to be met, and granted the interpretation appeal.

Mr. Manahan motioned to interpret that the lot at 199 Gray Road, Tax Assessor Map U20, Lot 70C, owned by Susan Gooch to be a buildable lot in conformance with Section 403.1 of the Ordinance.

Mr. Turner seconded.                                       VOTE:  Unanimous

The Board discussed the private way Ordinance and Section 403.1, and the definition of back lots.

Mr. Hatem stated his applicant withdrew the lot frontage variance requirement.

Mr. Wyman stated the Board would take up testimony for the Goochs request for a special exception to allow a duplex dwelling at 199 Gray Road, Tax Assessor Map U20, Lot 70C in the Local Business / Rural Residential 2 / Limited Residential Shoreland Overlay districts.

Mr. Hatem stated his client would like to build a duplex, which is allowed as a special exception.  He reviewed the standards and stated there would be no negative impact on the site or surrounding properties.

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.
The Board reviewed the Special Exception standards, Section 603.2.3 with the following findings:

.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 duplex 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 duplex will have an approved septic system that will not cause water pollution.
  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 duplex 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;
There is a similar dwelling on the abutting property, and single family dwellings on Gray Road.  The duplex 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 duplex will be used for a dwelling and 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 duplex 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 duplex 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 use will not result in any damage to the shoreland area.
The Board found this requirement to be satisfied.


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 duplex dwelling 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 duplex dwelling 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 duplex 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 duplex dwelling will have an approved septic system that will not contaminate any water supply.
The Board found this requirement to be satisfied.

Mr. Manahan moved to grant a special exception to Susan Gooch for a duplex dwelling at 199 Gray Road, Tax Assessor Map U20, Lot 70C, in the Local Business / Rural Residential 2 / Limited Residential Shoreland Overlay district.

2.      Variance                                   Cumberland Historical Society
                                                  4 Blanchard Road
                                                  Cumberland, Maine 04021
                                                  Tax Assessor Map U11, Lot 50
                                                  Medium Density Residential/ S02 districts

Mr. Kendall presented background information as follows: The applicant is requesting approval for a ramp to provide access to the rear entrance of the building.  The applicant has provided plans for review.  The Board should consider that the ramp should not be built over the septic system and that the Building Code requires adequate structural support and frost protection of all structures including ramps.

The variance request must comply with the practical difficulty criteria in Section 104.97.

Mr. Morgan Knight, member of the Historical Society presented the Board with photos and stated the Historical Society has a need for a handicapped ramp.  The Historical Society would provide the materials and Scott Leighton a junior at Greely High School would do the work.  He introduced Mr. Leighton.

Mr. Scott Leighton, of 21 Whitetail Road stated he was representing the laborers.  Mr. Knight had told him of the need for the handicapped ramp.  He is working to obtain the rank of Eagle Scout and has volunteered to build the ramp.  An engineer has designed the plans and the engineer would be on-site to supervise construction.  

Mr. Wyman asked if the handicapped ramp will meet the American with Disabilities Act (ADA) standards.

Mr. Leighton stated yes.  The door will not be changed to maintain the historical integrity of he building.

Mr. Wyman asked if the ramp would have hand railings.

Mr. Leighton stated yes.  The ramp would attach to the building over the current cement stairs.

Mr. Black asked if members were unable to attend meetings because of lack of handicapped access.

Mr. Manahan stated there is a provision of State Law that an owner of a dwelling has the responsibility to comply with ADA laws.

Mr. Black asked if the Historical Society operated with donations and would suffer a loss if the donors to the society were unable to have access.

Mr. Morgan Knight stated the Town of Cumberland received a $70,000 grant from will twenty years ago and receives donations from private citizens.  The Historical Society is open on the third Thursday of the month.

Mr. Wyman asked if this were the best location for the handicapped ramp.

Mr. Knight stated yes, for aesthetics the ramp would be in the back of the building. The existing door width is adequate for an average wheel chair.

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. Manahan moved to grant variances to the Cumberland Historical Society of thirty-five (35) feet from the rear setback requirement and one foot (1) from the side setback requirement. To construct a handicapped ramp at 4 Blanchard Road, Tax Assessor Map U11, Lot 50 in the Medium Density Residential/ Setback Overlay 2 district.  The design of the handicapped ramp is to conform to local building codes.

Mr. Kendall seconded.                                      VOTE:  Unanimous

Mr. Wyman asked if the ramp would be over the existing septic system.
Mr. Brian Leighton, of 21 Whitetail Road, stated the ramp would be over the existing concrete walkway.  There is no septic system under the concrete.
3.      Variance                                          Robert & Michelle Simonds
                                                         269 Bruce Hill Road
                                                         Tax Assessor Map R08A, Lot 57
                                                         Rural Residential 2 district

Mr. Kendall presented background information as follows: Robert and Michelle Simonds request a six foot variance from the thirty-five foot maximum of Section 413 Height Regulations for a widows walk on a proposed dwelling at 269 Bruce Hill Road on Map R08A Lot 57 in the Rural Residential 2 (RR2) District.

The applicant is requesting approval in order to obtain a panoramic view from Casco Bay to the White Mountains.  

The variance request must comply with the undue hardship criteria in Section 104.138.

Mr. Simonds, applicant stated he had purchased the land next to the Knight property.  The lot has views of Harpswell and the White Mountains.  He would like to incorporate a widows walk on the top of his house.  The peak of the main house is thirty-five feet and the peak of the widows walk is forty feet.
He stated that Section 413 of the Ordinance states the Board of Adjustment and Appeals may grant a special exception for heights that exceed the thirty-five feet.

Mr. Wyman asked for testimony from the public in support of the application.

Mr. Craig Wetmore, of 9 Pleasant Valley Road stated he had no objections and didnt think the cupola or widows walk would have a negative impact.

Mr. Wyman asked for testimony that was in opposition, neutral or informational.

Ms. Bethany Hayes, of 263 Bruce Hill Road stated she is the lot to the south of Mr. Simonds property.  She stated her house is close to the property line, and questioned if people would be able to look down into her backyard.

Mr. Copp asked if there would be tree buffers between both properties, and where the house would sit.

Mr. Simonds stated thirty feet from the stone wall.

Mr. Turner asked if the widows walk would look down on the Knights Pond.

Mr. Simonds stated no; it is about 100 away.

The public portion of the meeting was closed.

The Board discussed the discrepancy in Section 413 Height Regulations and Section 104.140 Variance.  It was determined to review the application as a special exception request.
Mr. Wyman asked if a six-foot height allowance would be adequate.

Mr. Simonds stated yes, the grading on the lot hasnt been completed the request was an approximation.  

The Board then reviewed the Special Exception standards, Section 603.2.3 with the following findings:

.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 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 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 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 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 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 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 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 determined the property is not in a shoreland zone.

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 to 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 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 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 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 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 Board found this requirement to be satisfied.

The Board reviewed the standards of Section 413 - Height Regulations with the following findings:

413     Height Regulations: Height limitations for all districts shall be 35 feet, except that the Board of Adjustment and Appeals may allow a greater height as a special exception, upon a finding that the proposed height will not adversely affect other property in the same district and neighborhood, that the granting of such approval by the Board will not substantially depart from the intent and purposes of this ordinance where it is consistent with the objectives of the Comprehensive Plan, and is in a scale with its environs.  These regulations shall not apply to silos for the storage of feed crops, or to steeples.
The house will be situated on the far corner of the property.  The site will maintain wooded buffering and the lot has mature dense trees that are thirty to forty feet tall.  The widows walk will not adversely affect other property in the same district and neighborhood, will not depart from the intent and purposes of the ordinance, and is in a scale with its environs.
Based on the information provided the standards of this section have been met.

Mr. Turner asked the square footage of the house.

Mr. Simonds stated 2,400-sq. ft. of living space with a 2.5 car garage.

Mr. Turner stated other houses in the area are roughly 2,000 sq. ft.  

Mr. Manahan asked if there were any fire safety issue with the height.

Mr. Copp stated ladder trucks could reach that high.

The Board determined based on testimony and findings that that application meets the requirements of Sections 603.2.3 and 603.2.7 and 413 of the Zoning Ordinance.  

Mr. Manahan moved to grant to Robert and Michelle Simonds a six-foot exception of the thirty-five foot maximum height allowance for a widows walk or cupola for a house to be built at 269 Bruce Hill Road, Tax Assessor Map R08A, Lot 57 in the Rural Residential 2 district.

Mr. Turner seconded.                                VOTE:  Unanimous


Administrative Matters

Minutes of April 10, 2003 meeting.

Mr. Turner moved to approve the minutes of the April 10, 2003 meeting.

                                                           2 Abstain (Manahan Black)

Minutes of May 8, 2003

Mr. Manahan moved to approve the minutes of May 8, 2003.