Present:        Scott Wyman, Chair, Black, Adrien Kendall, Matt Manahan, Absent: Ron Copp, George Turner
        
Staff:                 Barbara McPheters, Code Enforcement Officer, Pam Bosarge, Clerk

The meeting was called to order at 7:30 p.m.

1.      Variance                                   Chebeague Methodist Church
                                                  Parish House at South Road
                                                  Chebeague Island, ME
                                                  Tax Assessor Map I02, Lot 1
                                                  Island Residential District

Ms. McPheters presented background information as follows: Chebeague Methodist Church requests variances of thirty-three (33) feet from the fifty-five (55) foot front setback requirement for a ramp at the Parish House on South Road, Chebeague Island on Map I6 Lot 16 in the Island Residential (IR) District.

Mr. Ken Hamilton will be acting as the agent for the Church.  This request is for a handicap ramp from the parking lot to the front door of the Parish House to provide access to the public.  The property is located at 259 North Road not South Road as advertised.  As a matter of housekeeping, the application must be signed.
The variance request must comply with the undue hardship definition found in Section 104.138.

Reverend Robert Leon, Church Pastor was present for the meeting.  He stated it was a church policy to have all properties handicap accessible.  They are proposing an extension to the existing porch.

Mr. Wyman asked if the ramp could be used on the side door?

Reverend Leon stated it would require an extremely long ramp, and people entering would have to go through the kitchen, which would be difficult for wheelchairs.

Mr. Wyman asked if other elevations would need to be changed using the front door.

Reverend Leon stated no, it is all level with no door sills.

Mr. Wyman asked if the meeting hall had a side door.
Reverend Leon stated yes, in the rear, with an elevation difference of three to four feet with a single door. The porch will be re-built and 80 will be paved.  There will be a roof over the porch but not the ramp.

Mr. Black asked if the application were being considered under the "undue hardship or practical difficulty criteria.

Ms. McPheters stated undue hardship because it was not a dwelling unit.  She had asked the Town Attorney Ken Cole for his opinion and he agreed.

Mr. Manahan stated the Americans with Disability Act were more lenient.

The Board determined that the application was accurate and would be considered under the practical difficulty criteria, which does not prohibit other than single family dwellings.

Mr. Black asked Reverend Leon if the Church would suffer economic injury.

Reverend Leon stated the entire Island would suffer.  There are weekly senior citizen luncheons held at the hall.  The Parish Hall is one of the two major meeting places on Chebeague.  There are a substantial number of citizens who would benefit from a handicapped ramp.

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

Mr. John Maxon, of Chebeague Island stated the Parish Hall is open twenty-four hours a day and seven days a week.  Residents have use of the facility at no charge, and there are two public bathrooms in the building.  The handicapped ramp will not be major construction and will be an aid to the disabled and elderly population of Chebeague.

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 Practical Difficulty standards with the following findings:

        The Board found this requirement to be satisfied.

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

Mr. Manahan moved to grant Chebeague Methodist Church variances of thirty-three (33) feet from the fifty-five (55) foot front setback requirement for a ramp at the Parish House on South Road, Chebeague Island, Tax Assessor Map I06, Lot 16 in the Island Residential District.

Mr. Kendall seconded.                        VOTE:  Unanimous


Variance                                           Dana Bourgeois and Martha Greene
                                                  388 South Road
                                                  Chebeague Island, ME
                                                  Tax Assessor Map I02, Lot 1
                                                  Island Residential District

Ms. McPheters presented background information as follows: Dana Bourgeois and Martha Greene request a variance of twenty (20) feet from the fifty-five (55) foot front setback requirement for a deck at 388 South Road, Chebeague Island on Map I2 Lot 1 in the Island Residential (IR) District.

The applicants are requesting approval of a deck expansion on their single-family dwelling.  The zoning district has been erroneously identified and the property is located in the Island Business (IB) District.  Additionally, the applicant is requesting a variance of twenty-three (23) feet not twenty (20) feet from the (55) fifty-five foot front setback requirement.

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

Mr. Bourgeois, applicant stated the existing deck is 6' 8" wide with a railing there is approximately 6' of useable space, not enough to barbecue.  They would like to expand the deck with a semi-circular design to allow for a view of the ocean.  There is no view of the water other than directly in front of the house.  The expansion would not encroach any closer to the road.

Mr. Kendall asked if the old deck was in front of the house.

Mr. Bourgeois stated yes.

Mr. Kendall asked how he would suffer economic injury if he were not granted the variance.

Mr. Bourgeois stated he would have to move the house to have a view of the ocean.

Mr. Manahan also asked if he was unable to build a deck would there be significant economic injury.

Ms. Greene stated the inability to have a deck would diminish the value of the property.  She stated the house was built over 100 years ago, and many people in the neighborhood have received variances.

Mr. Martin asked if the deck could be a semi-circle located on the back of the house.

Ms. Greene stated the back of the house is the steepest part of the property, and the door to the house is on the side of the property.

Mr. Wyman asked if there was a porch on the front of the house.

Ms. Greene stated yes that is being used as their living room.

Mr. Black asked about the location of the right-of-way.

Ms. McPheters stated the variance was advertised correctly, the applicant provides accurate information, however a survey is not required.

Ms. Greene stated the deck would be no closer than the existing building to the right-of-way.

Mr. Black asked about the owner of the property being a LLC.

Ms. Greene stated the property is family property.

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 Practical Difficulty standards with the following findings:

Mr. Manahan stated he was not sure the property was different or unique to the neighborhood.

Mr. Kendall stated the property appears to have neighbors with close setbacks.
        

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

Mr. Manahan stated he was not sure there was not a feasible alternative, the deck could be placed towards the back of the house without the view.

The Board reviewed the Practical Difficulty Definition Practical difficulty shall mean that the strict application of the ordinance to the property precludes the ability of the petitioner to pursue a use permitted in the zoning district in which the property is located and results in significant economic injury tot he petitioner.

Mr. Wyman stated the house is older on a smaller lot on Chebeague.  The Board has previously granted variances for decks and garages.  The Board of Appeals and Planning Board met to discuss setback changes on the Island.  The Planning Board tabled the request at the August 9, 2002 meeting.

Mr. Wyman, Mr. Kendall, Mr. Manahan and Mr. Black agreed the deck proposal was sensible, but they were struggling with the economic injury and no other feasible alternative criteria.

Mr. Martin stated the photograph showed a six foot inadequate dangerous deck.

Mr. Wyman explained to the applicant that if the application were denied they would not be able to re-apply to the Board for twelve months.  The applicant could withdraw his application and wait to see the outcome of the Planning Board hearing on Island setbacks.

Mr. Bourgeois asked if the application was not withdrawn and was denied and the standards changed would he be prevented from building.

Mr. Manahan stated that if the standards of the Ordinance were changed they would be able to build in accordance with the zoning.  If the standards did not change they would be required to wait a year before re-applying to the Board.

Ms. Greene said the existing deck has been removed.  They would not be building over the winter; the deck material is already on the premises.

Mr. Manahan moved to grant Dana Bourgeois and Martha Greene a variance of twenty (20) feet from the fifty-five (55) foot front setback requirement for a deck at 388 South Road, Chebeague Island, Tax Assessor Map I02, Lot 1 in the Island Residential district.

Mr. Martin seconded.                                VOTE:  1 in favor (Martin)

3.      Variance                                   Wayne Buhelt
                                                  38 Hill Street
                                                  Cumberland, Maine 04021
                                                  Tax Assessor Map U22, Lot 26
                                                  Medium Density/ Limited Shoreland

Ms. McPheters presented background information as follows: Wayne Buhelt requests variances of ten (10) feet from the thirty-five (35) foot front setback requirements (for both Lake Avenue and Hill Street) and thirty-eight (38) feet from the fifty (50) foot rear or eight (8) feet from the twenty (20) foot side setback requirement for a garage at 38 Hill Street on Map U22 Lot 26 in the Medium Density Residential/Limited Residential Shoreland Overlay (MDR/LR) Districts.

The applicant is requesting approval for a two-car garage for his single-family dwelling.  The existing shed will be removed to make room for the new structure.  In addition to the rear or side setback variance request, the applicant is requesting variances of twenty-two (22) feet from Lake Avenue and seven (7) feet from Hill Street not the advertised ten (10) feet from the thirty-five (35) foot front setback requirements.
The variance request must comply with the undue hardship definition in Section 104.138 of the zoning ordinance.

Mr. Jonathan Brooks, builder for Mr. Buhelt stated they would like to build a 24 x 24 garage and replace an existing shed.

Mr. Wyman asked what was the current shed size.

Mr. Brooks stated 14 x 20.

Mr. Wyman asked if the garage would be detached with 10' between the house and garage.
Ms. McPheters stated that there was a minimum 10' required by the building code.

Mr. Wyman asked if the garage could be attached.

Mr. Brooks stated the garage would be built on a slab.

Mr. Kendall asked if the elements of the current house prevented an alternative location for the garage, or the possibility of attaching the garage.

Mr. Brooks stated the applicant would lose interior space in the garage with the stair geometry.

Mr. Buhelt, applicant stated the house was built on ledge.

Mr. Kendall asked if they could blast.

Mr. Brooks stated all the property is ledge, and the location would be too close to the existing house to blast.

Mr. Wyman asked about the other side of the house.

Mr. Brooks stated there are stone walls and heavy ledge, and the back right corner has the leach field.

Ms. McPheters stated she and the Public Works Director has inspected the property and verified the other side was ledge, and proposed location would be the most practical location.

The Board reviewed front setbacks, and the requirements for property with two roads.

Mr. Kendall stated if the garage were attached there would be a need for a variance on three sides of the property.

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

Mr. Ivan Ossander, of 1 Hill Street stated he lived across the street from the applicant and supported the request.  He had received a variance to build a garage.

Mr. Duncan Smith, of 35 Lake Street stated he was across the street beside Mr. Buhelt and had no objections.  A garage would improve the neighborhood.

Mr. John Tolan, of 35 Island Ave. stated he abutter the property to the rear, and had no objections; he also received a variance for a garage.

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 asked about Mr. Ossanders variance, was there any conflict.

Ms. McPheters stated Mr. Dan Prichard of the DEP questioned the volume calculations.

Mr. Kendall asked if there was testimony from the applicant regarding the distance from the water.

Ms. McPheters stated the tax maps show in excess of 100 feet

Mr. Buhelt stated the property is over 100' from the lake on all sides.

Mr. Wyman reviewed the undue hardship variance criteria.

Undue Hardship - for a single-family dwelling that is the primary year-round residence of the applicant, the term "undue hardship" shall mean:
1.      The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
2.      The granting of a variance will not alter the essential character of the locality;

3.      The hardship is not the result of action taken by the applicant or a prior owner;

4.      The granting of a variance will not substantially reduce or impair the use of abutting property; and

5.      That the granting of a variance is based upon demonstrated need, not convenience, and no other feasible alternative is available.

A variance for such single-family dwellings may not exceed 20% of a setback requirement and may not be granted if the variance would cause the area to exceed the maximum permissible lot coverage; provided, however, that the variance may exceed 20% of the setback requirement, except for minimum setback from wetlands or water bodies in Shoreland Areas, if the applicant has obtained the consent of affected abutting landowners.

For all other structures, "undue hardship" shall mean:

1.      The land in question cannot yield a reasonable return unless a variance is granted;

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

3.      The granting of a variance will not alter the essential character of the locality;

4.      The hardship is not the result of action taken by the applicant or a prior owner.  [Amended - effective 10/17/94]

The Board discussed the reasonable return criteria.

Mr. Manahan moved to grant Mr. Buhelt variances of twenty-two (22) feet from the thirty-five (35) foot front setback requirement from Lake Avenue and seven (7) feet from the thirty-five  (35) foot front setback requirement from Hill Street and thirty-eight (38) feet from the fifty (50) foot rear setback requirement for a garage at 38 Hill Street; Tax Assessor Map U22, Lot 26 in the Medium Density Residential / Limited Residential Shoreland Overlay districts.


4.      Variance                                   John Mitchell, Mitchell Assoc.
                                                  Agent for Southwoods, LLC
                                                  Jordan Farm Estates
                                                  Tuttle Road
                                                  Tax Assessor Map R02, Lot 43A
                                                  Rural Residential 2 district

This item was tabled at the applicant's request.

5.      Special Exception                           Peter Kennedy
                                                  U. S. Route One
                                                  Tax Assessor Map R01, Lot 8
                                                  Office Commercial District

Ms. McPheters presented background information as follows: Peter Kennedy requests a special exception for a light manufacturing facility on US Route 1 on Map R1 Lot 8 in the Office Commercial (OC) District.

The applicant is requesting approval for a sail making facility with five to eight employees.  Site plan review by the Planning Board will be required for this use.

The special exception request must comply with the criteria found in Section 603.2.3 and 603.2.7 of the zoning ordinance.

Mr. Kennedy, applicant stated he is proposing a common building that would look like an office building.  This would be on the very southern section of the office commercial district next to Falmouth.  The tenant would be Hallet Sales.

Mr. Kendall reviewed the special exception standards 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 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;
Mr. Kennedy stated the loudest equipment would be a sewing machine.
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.

Mr. Wyman asked for testimony that was in favor of the application.  There was none.  He asked for testimony in opposition, neutral, or informational.  

Mr. Edward Shanley, of 31 Granite Ridge Road stated he had purchased his condo at True Spring Condominiums two years ago and was concerned about the change in zoning.

Mr. Black asked Mr. Shanley if he was concerned with any of the special exception standards.

Mr. Shanley stated no.

Mr. Cimino, of 37 Granite Ridge and President of the True Spring Farm condominium association voiced concerns regarding zone change.  He had no problem with the proposed sail making business; he was concerned if the use or tenant would change.

Ms. McPheters stated a change in use would require a new application for a special exception from the Board of Adjustment and Appeals.

Mr. Cimino was concerned with a zone change.

Ms. McPheters explained that light manufacturing was a permitted use as a special exception.

The Board discussed the difference between a variance and a special exception, which is tantamount to a permitted use.

Mr. McGathlin, of 17 Granite Ridge Road voiced concern regarding the type of construction and building.

Mr. Wyman stated the responsibility of the Board is to review applications in accordance with the Zoning Ordinance.

Mr. Kendall asked the applicant about the external appearance of the proposed building.

Mr. Kennedy stated the construction would be n accordance with the new Route One-Design Guidelines.

Mr. Hallet, of Hallet Sails stated they had not proposed a building, the first step was to get approval from the Board of Adjustment and Appeals.  The building will have a brick front with wood.

Ms. McPheters stated complying with the Route One Design Guidelines were part of the contract zone agreement.

Mr. Kennedy stated there would be a common drive, which the D.O.T. would mandate to have as few curb cuts as possible.  When he has the subdivision plan approved, Mr. Hallet would purchase the building.

Ms. McPheters stated common drives were not permitted in the ordinance and the applicant may have to ask for a variance.

Mr. Manahan moved to grant a special exception complying with the Route One Design Guidelines with the exception of the buffering requirement to Peter Kennedy for a light manufacturing facility on U S Route One on Tax Assessor Map R01, Lot 8 in the Office Commercial District.

Mr. Kendall seconded.

Mr. Black asked about the visual impact of the proposed building.

Ms. McPheters stated the Route One-Design Guidelines are in draft format and have not been adopted; there are some issues in the draft that conflict with the zoning ordinance.

Mr. Manahan asked about design standards.

Mr. Kennedy stated the Planning Board would scrutinize the design, utility etc. in the Site Plan Review.  There will be eleven commercial lots with a theme to the neighborhood.

Mr. Black asked what impact would the applicant have if he had to present a visual drawing.

Mr. Kennedy stated the delay would not enable the proposed occupancy date.

Mr. Manahan moved to amend the motion to condition the approval with the requirement that the special exception be conditioned to comply with the Route One Design Guidelines as proposed or adopted at the time of Site Plan Review and subject to any changes deemed by the Planning Board.

Mr. Kendall seconded.                        VOTE:  Unanimous

Motion  - Mr. Manahan moved to grant a special exception complying with the Route One Design Guidelines with the exception of the buffering requirement to Peter Kennedy for a light manufacturing facility on U S Route One on Tax Assessor Map R01, Lot 8 in the Office Commercial District.

Mr. Kendall seconded.                        VOTE:  Unanimous

6.      Variance                                   Robert Fast
                                                  16 Stornoway Drive
                                                  Tax Assessor Map U01, Lot 49
                                                  Low Density Residential District

Ms. McPheters presented background information as follows: Robert Fast requests a variance of fifty (50) feet from the sixty-five (65) foot rear setback requirement for an addition at 16 Stornoway Drive on Map U01, Lot 49 in the Low Density Residential (LDR) District.

The applicant is requesting approval for an addition further from the rear property line than the existing building but still within the rear setback requirement.  The existing ell and breezeway will be demolished and rebuilt as part of the project.

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

Mr. Fast applicant stated that the house is an old turn of the century center chimney cape.  It was originally a guesthouse; the upstairs have low ceilings with narrow hallways.  The bedrooms are accessed from one to another.  The house is not up to building code and the house has no foundation and is shifting and settling.  The renovation will allow an extension to the upstairs hallway and additional width to expand the kitchen.  Egress windows will be added to the upstairs.

Mr. Kendall asked if the foot print would be expanded past what existed.

Mr. Fast stated the building integrity was in jeopardy with no existing foundation.

Mr. Wyman asked if there was a safety issue.

Mr. Fast stated yes, egress for fire safety.

Mr. Manahan asked if the applicant would suffer economic injury.

Mr. Fast stated without the improvements the building would decrease in value because of disrepair and safety issues.

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 Practical Difficulty standards with the following findings:

        The Board found this requirement to be satisfied.

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

Mr. Manahan moved to grant a variance to Robert Fast of fifty (50) feet from the sixty-five (65) foot rear setback requirement for an addition at 16 Stornoway Drive, Tax Assessor Map U01, Lot 49 in the Low Density Residential district.

Mr. Martin seconded.                                       VOTE:  Unanimous

Administrative Matters

Mr. Kendall moved to approve the minutes of the June 13, 2002 meeting as presented.

The Board discussed the start time of meetings.  Mr. Wyman stated that if the meeting started at 7:00 p.m. it would benefit applicants from Chebeague who have transportation issues.

Mr. Kendall stated he was concerned Mr. Copp would have a conflict, he wanted to hear his comment.  Mr. Kendall preferred the 7:30 p.m. start time.

The Board voted to table the meeting start time to the August meeting.  Ms. McPheters was asked to poll Mr. Copp and Mr. Turner prior to the August meeting.

Ms. McPheters referred to a memo from Andy Fillmore, Town Planner regarding scheduling a joint Planning Board and Board of Adjustment and Appeals workshop regarding right of ways for August 20^th at 6:00 p.m.

Mr. Kendall and Mr. Martin said they would be available.  Mr. Black will not be able to make the workshop, and Mr. Wyman and Mr. Manahan would check their calendars.

Ms. McPheters asked if the August meeting could be on August 15^th, due to vacation schedules.

The August Board of Appeals meeting will be held on August 15, 2002 at 7:30 p.m.

The Board discussed the upcoming Planning Board / Board of Appeals Workshop presented by the State Planning Office on September 11^th in Saco.  
Mr. Wyman and Mr. Turner were planning to attend, and Mr. Black would check his schedule.  Mr. Kendall and Mr. Martin would like a Board of Adjustment and Appeals Manual.

Mr. Manahan moved to adjourn.

Mr. Martin seconded.                                VOTE:  Unanimous

Meeting adjourned at 10:15 p.m.

A TRUE COPY ATTEST:



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