1.      Variance                                   Heirs of Arnold Frost
                                                  15 Goose Pond Road
                                                  Cumberland, ME 04021
                                                  Tax Assessor Map R07, Lot 44
                                                  Industrial Zone

Mr. Longley presented background information as follows:  The applicants are requesting a variance of sixty-four (64) feet from the one-hundred (100) foot front setback and twenty-nine (29) feet from the sixty-five (65) foot rear setback requirement for an expansion of a non-conforming use for a replacement single-family dwelling at 15 Goose Pond Road; Tax Map R07, Lot 44 in the Industrial District.

Mrs. Frost, applicant stated they had been granted similar variances in 1998 and 1995; but were unable to build the additions; at this time they have been received an offer to have a single-family dwelling placed on the property.  The house will be re-located from Mary Lane Subdivision on Foreside Road.

Mr. Wyman stated the Board had conducted a site walk at 6:00 p.m. prior to the meeting.

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

Mr. Mark Kuntz, of 60 Blackstrap Road stated he is an abutter on two sides of the property.  The proposed house will provide the Frosts with basic amenities.  He is in favor of the request.

Mr. Wyman asked if it were correct that the current house did not have plumbing that meets code.

Mr. Kuntz stated that was correct.

Mr. Wyman asked if it was correct that the current property did not have an adequate water supply.

Mr. Kuntz stated that was correct.
Mr. Wyman asked if the current structure would be moved.

Mr. Kuntz stated the current structure would be removed and the new dwelling would be placed in the location of the flags.  

Mr. Wyman asked if there was an approved septic design.

Mr. Kuntz stated yes.  The new dwelling will have central heat, and domestic hot water, which the current dwelling does not have.  The Frosts have been heating with a kerosene heater.  This proposal is a wonderful opportunity for the Frosts.

Mr. Bill Shane, Town Manager testified in support of the application.  This is the third request for a variance before the Board of Appeals, previous Boards have granted the two previous requests.  As Mrs. Frost testified due to financial reasons they were not able to build the previous proposed additions.  He stated this is a great example of neighbors helping neighbors and a wonderful opportunity for the Frosts to have a wonderful home.  The home was scheduled to be demolished and Carla Nixon the Town Planner, had informed Mr. Shane of the house.  Mr. Shane was aware that Mr. Kuntz was looking into a modular home for the Frosts.  This house seemed to be a great opportunity for everyone.  He would hope the Board would be able to allow this request to benefit the Frost family.

Mr. Manahan asked Mr. Shane about the setback overlay district.  He asked if the Town could re-zone this property to residential and have an overlay district that would allow the use.

Mr. Shane stated staff and the Town Attorney had reviewed the request and felt it was appropriate to issue a variance (which had been previously issued).  The Town looked at contract zoning, which would have been cumbersome and require Planning Board and Council approval.

Mr. Manahan stated "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 to the petitioner.  He asked if the Town had given any thought if the Board could issue a variance for a use that is not permitted in the district.
Mr. Shane stated the Town Attorney gave an opinion that the property was a non-conforming grandfathered use, which was consistent with neighboring properties.  

Mr. Wyman asked for public testimony in opposition, neutral or for informational purposes.  There was none.  The public portion of the meeting was closed.

Mr. Manahan asked Mr. Longley; about the definition of practical difficulty variance, which states the variance, must be for a use allowed in the zoning district.  The property is located in the Industrial zone and single-family homes are not a permitted use; clearly a grand fathered use could continue, but he asked if a variance could be granted.

Mr. Longley stated the grand fathered use, which is a single-family residence, could continue as a non-conforming use in that zone.  The single family dwelling has existed since the late 1950's or early 1960"s. If the applicant were asking to change the use and to do so required a variance, the Board would listen to evidence and testimony and make a determination of continuing the existing non-conforming verses the proposed use.

Mr. Manahan agreed the existing use could continue.

Mr. Manahan asked about the language strict application of the Ordinance precludes the ability of the petitioner to pursue a use permitted in the zoning district

Mr. Longley stated he could not read into the language why it was written that way.  He thought primarily if somebody had a use that was an existing current use in the Industrial Zone and wanted to change, to another use, which would require a variance the Board might determine not to issue the variance.

Mr. Wyman quoted Section 501 of the Ordinance that states a non-conforming use can be re-constructed, altered, or improved.

Mr. Wyman stated based on the site walk the proposal will greatly improve the property, give some basic living standards and improve safety to the applicants.

Mr. Manahan moved to grant a variance of sixty-four (64) feet from the one hundred foot front setback and twenty-nine (29) feet from the sixty-five (65) foot rear setback requirements for an expansion of a non-conforming use for a replacement of a single-family dwelling at 15 Goose Pond Road, Tax Assessor Map R07, Lot 44 in the Industrial (I) District.

The Board reviewed the standards of Section 104.97 Practical Difficulty and determined based on the following findings the standards of the Section have been met.

The Board found that the strict application of the Ordinance to the property would preclude the ability of the petitioner to pursue a use permitted in the zoning district (which is a grandfathered use) and would result in significant economic injury to the petitioner because they would have to buy another house somewhere else or upgrade the existing house.
This property is unique in the neighborhood and not like the other properties near by that it 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.  This is not the action taken by the petitioner or a prior owner.  That no other feasible alternative is available to the petitioner; that the granting of this variance will not unreasonably adversely affect the natural environment; and the property is not located in whole or in part within the shoreland area.  

Mr. Kendall seconded.                        VOTE:  Unanimous

2.      Variance                                   John E. Tolan, Trustee of
                                                  the John Tolan Living Trust
                                                  35 Island Avenue
                                                  Tax Assessor Map U22, Lot 24A
                                                  Medium Density Residential/
                                                  Limited Residential Districts

Mr. Longley presented background as follows:  John E. Tolan Trustee of the John J. Tolan Living Trust requests a variance of eight (18) feet from the twenty (20) foot side setback requirement for a detached garage for a single-family dwelling at 35 Island Avenue, Tax Assessor Map U22, Lot 24A in the Medium Density Residential / Limited Residential Districts.  The address change from E-911 was not incorporated into the advertising it has been corrected for tonights hearing.  It is the same property and all of the previous information in the file indicates the old address of 33 Lake Avenue.  The property is located in the Shoreland District.  A Shoreland variance must be filed with the Department of Environmental Protection as was previously done on the property.

Mr. Tolan, of 9 Serenity Drive in Scarborough stated this property belonged to his Father, who recently passed away.  They are requesting a variance because the garage he built three years ago was found by a Class D Survey to be in violation of the setback.  The property is under contract to be purchased.  It is his understanding this was not an intentional violation by his Father.  He believes it was his Fathers intent to be five feet from the lot line at the construction of the garage, and the garage was placed in error.

Mr. Wyman asked if the building was built or designed by a builder.

Mr. Tolan stated the garage was designed by his Father ( a do it yourself type) he purchased the plans off the internet.  There was a company who laid the foundation, but the structure was built according to the plans.  

Mr. Wyman asked if his Father had measured and positioned the garage where it currently sits.

Mr. Tolan stated yes.

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

Mr. Wayne Buhelt, of 2 Hill Street stated he has no problem with the current location of the garage.

Mr. Wyman stated for the record the Board completed a site walk at approximately 6:25 p.m. this evening.  He stated it was his understanding that Mr. Buhelt helped Mr. Tolan measure the perceived property boundaries.  

Mr. Buhelt stated he showed Mr. Tolan where his property boundary was, give or take a foot or two.

Mr. Wyman asked if there were any pins between the properties.

Mr. Buhelt stated no, there is a wooden stake in the front of the property which he placed a year or two ago.

Mr. Wyman asked if the stake was an approximate location of the boundary.

Mr. Buhelt stated yes.
Mr. Duncan Smith, of 37 Island Avenue an abutter on the lakeside of the property, also has no problem with the location of the garage.  He knew Mr. Tolan had reduced the garage by two feet to locate it on the property, as it was sited it appeared to be five feet from the boundary.  

Mr. Ivan Ossander of 1 Hill Street stated he is not a direct abutter.  He helped Mr. Tolan stand the walls of the garage, and also agreed he thought Mr. Tolan had mistakenly placed the garage outside the five foot setback.  

Mr. Delwin Smith, a former abutter of Mr. Tolan, stated he met him four or five years ago, and also helped build the garage.  He agreed Mr. Tolans mistake was not intentional.  A wooden stake was placed in the ground and the contractors measured five feet from that line.  

Mr. Wyman asked Mr. Tolan to return to the podium.

Mr. Wyman asked Mr. Tolan if a surveyor was hired to survey the lines of the property.

Mr. Tolan stated they had contacted a surveyor to confirm the location of the garage, due to time constraints they were not able to complete a survey prior to tonights hearing.

Mr. Wyman stated a pin was found in the far left corner, and asked if that was the only existing pin.

Mr. Tolan stated they had raked and probed and tried to find more pins, but were not able to find any.

Mr. Wyman asked Mr. Tolan to describe the land surrounding that portion of the lot.

Mr. Tolan stated the land is very wooded, wet and slopes away from the garage.  There is a constraint on the left side of the garage due to a holding tank.  It is mostly marshland; this is the one high area on that side of the land.

Mr. Kendall asked if the width of the garage as built was 22 or 24 feet wide.

Mr. Tolan stated it is 22 feet.

Mr. Manahan asked if the garage was 22 wide and 24 deep.

Mr. Tolan stated yes.

Mr. Wyman asked for testimony in opposition, neutral or for informational purposes.  There was none.  The public portion of the meeting was closed.

Mr. Turner stated in looking at this the Board has to consider its options.  If the Board did not grant a variance the garage would need to be moved.  In assuming the setback request is accurate based on where the property line is thought to be.  He didnt see what advantage there would be to move the garage three feet closer to the wetland.  

Mr. Kendall asked Mr. Buhelt if he could deed a little swath of land to Mr. Tolan or would it make his lot non-conforming?

Mr. Buhelt stated his lot is currently non-conforming.  

Mr. Manahan asked what would happen if the Board denied the request, which doesnt make sense.  The garage seems to be in the best location considering the wetlands.  What troubles him is three or four years ago when this Board imposed the requirement to re-size the garage from 24 to 22 the applicant went out and asked his neighbor where the lot line was.  He felt that was not in good judgment, which sends a message that if people come to the Board they can ignore what we say, because once it is on the ground we are not going to make them move the building.  He agrees that this was not done intentionally, but he was careless, in a situation where he was told he could not go any closer than five feet from the lot line.  Is there some way to send a message, grant this and impose a penalty?

Mr. Longley stated hopefully this situation would never come up again.  If the Board goes to the extent of granting a variance of no closer than five feet, he wants to see a line with a string and a measurement to verify that the building will not be closer than five feet.  His way of doing business may alleviate this happening.  He is not a surveyor, but will require an applicant to prove the location of the building.

Mr. Longley stated the Town could draft a consent agreement and impose a penalty.  

The Board stated on a previous appeal a contractor had been fined.

Mr. Longley agreed the Board has the authority to impose fines.  The difficultly of this situation is the person is no longer here.  If this happens again most likely the person would be present to answer how the mistake happened.  Unfortunately, Mr. Tolan is no longer around and imposing a fine on his heirs does not seem fair.

Mr. Turner stated he has been on the Board for twenty plus years, and these problems arise at transfer of property on Class D Surveys, and agrees that penalizing someone after the fact is not good.

Mr. Manahan agreed, the Board has the authority to impose a fine.

Mr. Manahan agreed he would encourage people to be more careful to be sure the property lines are correct.

Mr. Kendall moved to approve the application of John E. Tolan, Trustee of the John J. Tolan Living Trust for a variance of eighteen (18) feet from the twenty (20) foot side setback requirement for an existing garage at 35 Island Avenue, Tax Assessor Map U22, Lot 24A in the Medium Density Residential / Limited Residential Districts.

Mr. Manahan seconded.                        VOTE:  Unanimous


The Board approved the application based on the findings of three years ago and found they are applicable for the additional three feet.

Administrative Matters

1.      Minutes of June 10, 2004 meeting.

Mr. Kendall moved to approve the minutes of June 10, 2004.

Mr. Manahan seconded.                        VOTE:  4 in favor
                             

Adjourned:  7:55 p.m.

A TRUE COPY ATTEST:

_________________________                     _______________________
R. Scott Wyman, Board Chair                   Pam Bosarge, Board Clerk