Town of Cumberland

Board of Adjustment and Appeals

Minutes of Meeting

September 8, 2005

 

Present:            R. Scott Wyman, Ron Copp, Pete Wilson, Andrew Black, Matt Manahan, Sam Wilkinson

                       

Absent: Adrian Kendall, Mike Martin

 

Staff:                William Longley, Code Enforcement Officer, 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 rules of procedure for the meeting.  Stating there would be opportunity for public testimony.  The meeting is a make up meeting. 

 

Hearings and Presentations:

                

            1.  Special Exception - Igor Friedman requests a Special Exception for a Home Occupation of a Limousine Service to be located at 224 Middle Road, Tax Assessor Map R02, Lot 36A, in the Rural Industrial Zone (RI).

 

Mr. Longley presented background information as follows:  Mr. Igor Friedman requests a special exception for a home occupation of a limousine service to be located at 224 Middle Road, Tax Assessor Map R02, Lot 36A, in the Rural Industrial Zone.  Mr. Longley stated that Mr. Friedman and his Broker, Mr. Carey of Caldwell Banker Residential Brokerage had been informed that the limousine service may not meet the criteria of a Home Occupation as defined in the Ordinance.  Mr. Friedman advised he would like to proceed with the appeal.

 

Mr. Wyman asked Mr. Friedman to step up to the podium.  He informed Mr. Friedman that he had been informed by the Town Council that an Ad Hoc Committee has been established to review Home Occupation uses and uses allowed in the Rural Industrial Zone.  Mr. Wyman explained if the application was denied, the applicant would be prevented from coming back to the Board for 12 months.

 

Mr. Manahan agreed with Mr. Wyman he was not sure the applicant could meet the criteria of a home occupation.  If the applicant proceeded and was denied, and the Ordinance was changed that could be a substantial change prior to waiting 12 months for a new hearing.

 

Mr. Wyman stated that a special exception is neither special nor an exception it is tantamount to a permitted use.  The applicant must show how the application meets the Ordinance as written today.

 

Mr. Friedman stated he would like to table his request.

 

Mr. Manahan moved to table the request of Igor Friedman to operate a limousine service as a home occupation at 224 Middle Road; Tax Assessor Map R02, Lot 36A, in the Rural Industrial Zone.

 

Mr. Copp seconded.   

 

Discussion on the motion:

 

Mr. Black asked to whose benefit was it was to table the application; if the applicant proceeded and the Ordinance was changed he could re-apply.

 

Mr. Manahan stated an Ordinance change might not benefit the applicant.

 

Mr. Manahan withdrew motion to table the application.

 

Mr. Wyman gave the applicant the option of withdrawing, tabling, or proceeding with his application.

 

Mr. Friedman chose to continue with his appeal.

 

Mr. Fred Friedman, representing his Father Igor Friedman stated they are looking forward to residing in Cumberland and operating their limousine service.  They currently operate at 62 Warren Avenue in Portland.  Bay Limousine is a corporate transport business.  His Father immigrated in 1989 and has worked as a taxi driver running his own business.  The business is not a typical limousine service it provides transportation to corporate clients such as Unum-Provident and the former President Bush.  The cars are gone during the day operating from Boston, Portland airports etc.

 

Mr. Manahan suggested the Board review the Home Occupation criteria in Section 414.1 prior to Sections 603.2.3 and 603.2.7 to determine if the use meets the Home Occupation criteria.

 

Mr. Wyman asked about the plans for a garage, the Board had been presented plans for the house.

 

Mr. Friedman stated there are no current plans for a garage, they will use a car shelter directly behind the proposed home, which will not be visible from the road; there will be no sign.

 

Mr. Wyman asked who would live in the house.

 

Mr. Friedman stated his Father Igor Friedman.

 

Mr. Wyman asked who dispatches the vehicles.

 

Mr. Friedman stated his Father.

 

Mr. Wyman asked if there were five cars and drivers.

 

Mr. Friedman stated there are five vehicles, including his personal car.

 

Mr. Wyman asked if all the drivers were employees.

 

Mr. Friedman stated yes.

 

Mr. Wyman asked how many employees?

 

Mr. Friedman answered six employees.

 

Mr. Manahan reviewed the Home Occupation criteria as follows:

414.1.1 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; more than two employees do not meet the standard.

 

414.1.2 The occupation or office will be located wholly within the principal or accessory structures, and; a portable enclosure is not part of a residence.

 

414.1.3 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.  The applicant is not requesting a sign.

 

Mr. Friedman presented the Board with photos and details of the portable auto shelters.

 

Mr. Black asked if the employees would come to the property to pick up the limousines and leave their personal vehicles.

 

Mr. Friedman stated yes.

 

Mr. Manahan asked if the employees' vehicles would be parked in the canvas during the day.

 

Mr. Friedman stated yes, they would replace the limos.

 

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.

 

Mr. Joshua Dow, of 218 Middle Road stated he has submitted a detailed letter to the Board, but summarized his concerns as follows:  A commercial limousine enterprise does not meet the criteria of Home Occupation as listed in Section 414 of the Ordinance.  A common theme in the list of home occupations is the concept that services are provided on site.  The testimony provided indicates the nature of the limousine business is transacted off site; the property will be used as a storage facility for limousines.  A Home Occupation is considered residential and not subject to Site Plan review from the Planning Board.  Site Plan review would address buffering, setbacks etc.  All of the neighbors are residential with the exception of Storey Bros. and Hazelton.  Mr. Dow stated if Mr. Friedman wished to operate his business at the property, he should be required to seek approval as a nonresidential use.  Mr. Dow"s complete testimony is included with the file in a letter dated September 8, 2005.

 

Mr. Wyman asked for clarity on the location of the lot.

 

Mr. Copp asked Mr. Dow if he would be able to see the canvas structures from his property.

 

Mr. Dow answered he had not seen a detailed plan, but expect he would there is very little buffer.

 

Mr. Copp stated his recollection was the area is open and not wooded.

 

Ms. Heather Burr, of 228 Middle Road, stated she is the abutter on the opposite side of the property.  Ms. Burr stated the lots are narrow, and she would be able to see the portable structure.  She questioned if the lot could accommodate the structures, there is a CMP right of way along the back of the lot and wetlands. 

 

Ms. Ellen Hayward, of 221 Middle Road, stated she is across the street and shares the same opinions as her neighbors.  She asked if there was a proposed business plan, and asked about growth.  Would there be any outside lighting.

 

Mr. Wyman stated any further growth or change in the use than the current five cars would need to come back to the Board for approval.

 

Mr. Bill Shane, Town Manager stated the Council is working with an ad hoc committee, regarding uses in the zone and home occupations.  He stated the Rural Industrial Zone would allow a great number of businesses that wouldnt be allowed as home occupations.

 

Mr. Manahan reviewed the list of permitted uses in the Rural Industrial zone.

 

The public portion of the meeting was closed.

 

Mr. Wyman commended the applicant on his successful business.  Mr. Wyman explained that the Board has been discussing the number of employees allowed as a home occupation.  The ordinance only allows two non-family employees.

 

Mr. Black agreed, in the zone a service garage could be operated which would be more invasive to the neighbors than a limousine service, but the limousine service does not meet the criteria of a home occupation.

 

Mr. Manahan and Mr. Copp agreed with Mr. Black there are many uses that are permitted in the Rural Industrial Zone; that would be more disruptive to the residential neighbors, but this request does not meet the criteria of a home occupation.

 

Mr. Wilson and Mr. Wilkinson agreed the use did not meet the criteria.

 

Mr. Black asked if the Board denied this application, could the applicant come back to the Board if the request changed.

 

Mr. Wyman stated if there was a substantial change in the application.

 

Mr. Longley stated if the plan changed, or the Ordinance changed and a limousine service was allowed as a special exception with site plan approval; that would be a substantially changed application.

 

Mr. Manahan stated Section 603.5 Successive Appeals: states the Board may entertain a new appeal if the Chairman believes that, owing to a mistake of law or misunderstanding of fact, an injustice was done, or if he believes that a change has taken place in some essential aspect of the case sufficient to warrant a reconsideration of the appeal.

 

Mr. Manahan moved to deny the special exception request of Igor Friedman for a Home Occupation of a Limousine Service to be located at 224 Middle Road; Tax Assessor Map R02, Lot 36A, in the Rural Industrial Zone.

 

Mr. Wilson seconded.                                                              VOTE:  Unanimous

 

 

2.         Special Exception  M.S.A.D. # 51 requests an amendment of the Special Exception granted in 1999 to include construction of dugouts, a storage shed and, if necessary, the football field; at 154 Greely Road, Twin Brook Fields; Tax Assessor Map R04, Lot 13, in the Rural Residential 1 district; owner Town of Cumberland.

 

Mr. Black stated he is heavily involved in Little League; and the organization has taken a public stand on this issue, to avoid the appearance of a conflict he asked to be recused.

 

Mr. Wyman stated the Boards review is not about supporting kids or sports, it will be to review the requirements of the Ordinance.

 

Mr. Longley presented background information as follows:  Mr. Longley was asked to review the files to determine if the 1999 review included the new items which have been requested by the District.  Natalie Burns, Town Attorney determined that the general scope and use of the project had not changed and did not require additional approval by the Board of Appeals.  Mr. Longley determined as Code Enforcement Officer that the 1999 approvals did not include structures and buildings.  The MSAD ball fields are a permitted use as a special exception in Section 204.1.2.2.7 Municipal uses and buildings, subject to site plan review.  The Board is asked to review the proposed appedicies to include construction of dugouts, a storage shed and, if necessary, the football field; at 154 Greely Road, Twin Brook Fields.

 

Mr. Bruce Smith, Esq. representative for the MSAD # 51 reviewed the background of the project as follows:  On April 8, 1999 the Board granted a special exception to the Town of Cumberland "to construct two baseball fields, a softball field, a field hockey field, parking areas, and uses associated: on the site at 154 Greely Road.  The Town subsequently leased the playing fields to MSAD # 51, which has since constructed four concrete block dugouts (not yet completed), a 10 x 12 storage shed, and a football field on the site.  The Code Enforcement Officer ruled on July 21, 2005 that the special exception granted in 1999 did not include approval of buildings.  Accordingly, MSAD # 51 as lessee and Town of Cumberland as owner now seek amendment of the special exception granted in 1999 to include construction of dugouts, a storage shed and, if necessary, the football field. 

            At the time of the lease the District was told there were no additional approvals required.  At the 1999 approval the Engineer did say there would be no buildings on the site.  Mr. Smith stated the District didnt believe an approval was necessary, if however it is determined to be necessary the District respectfully requests approval this evening.

            The Planning Board held a site walk on September 1, 2005, and will review the amendment to the minor site plan on September 20, 2005.

 

Mr. Manahan stated the approval was for a municipal use but the definition of a recreational facility seems to fit better.

 

Mr. Smith stated the original approval was for a municipal use if the Board feels it is more appropriate to approve the amendments as a recreational facility that is fine.

 

Mr. Manahan asked who maintains the fields.

 

Mr. Smith stated both the Town and the District.

 

Mr. Manahan asked about exterior lighting.

 

Mr. Smith stated there will be no exterior lighting; this is also part of the Memorandum of Understanding.

 

Mr. Wyman asked about the contents of the Memorandum of Understanding is it an attempt to mitigate some of the visual impacts on the neighbors.  Mr. Smith reviewed some components of the Memorandum of Understanding which is part of the written record.

 

Mr. Wyman asked if the Memorandum would be in effect after the lease.

 

Mr. Smith stated the lease is a 10year with automatic 1 year renewals.  The fields were built with State funding in conjunction with the Middle School project.  

 

Mr. Wyman asked for testimony from the public that was in favor.

 

Mr. Bill Shane, Town Manager, stated since the 1999 approvals there have been three Planners ,two Code Enforcement Officers, and two Town Managers.  The District believed that they were following procedure.  The National Guard came in and built some fields, the site was then left dormant.  In 2002 with the approvals of the new middle school the District thought these improvements were approved.  The new fields were considered by the District as part of the middle school approval.  The State funding required that the sports fields that were displaced by the new school building be re-located.  The Town Attorney, Natalie Burns reviewed the request and felt the buildings didnt change the use and was of the opinion that the Board of Appeals approval didnt need to be amended.  Mr. Longley, Code Enforcement Officer had determined that the District should apply for an amended approval including buildings.  Mr. Shane stated the Town supports the Memorandum of Understanding, and the District and Town share services.  The District cleaning staff cleans the Town Office in exchange for the Town plowing the schools.  The zoning ordinance doesnt require approvals for fences and scoreboards, recreation facilities pre-date the school use.

 

Mr. Wyman asked if the memorandum of Understanding was attached to the lease.

 

Mr. Shane stated no, they are separate documents.

 

Mr. Wyman asked if it was important to tie the two documents together.

 

Mr. Shane stated no the Memorandum is an agreement to honor an agreement.

 

Mr. Wyman asked about the scoreboard.

 

Mr. Shane stated it will be perpendicular 8 x 4 located left of center field; it will be electronic with a remote control.

 

Mr. Wyman asked if they would be covered with a natural material.

 

Mr. Shane stated they will be taken down and stored during off season.

 

Mr. Copp asked if the scoreboard would be visible above the trees.

 

Mr. Shane stated the top is 16 above the ground; the steel beams are probably 20 feet.  They will be set back 250 feet from Greely Road.

 

Ms. Polly Haight-Frawley, Chair of the School Board stated this review has been a lengthy process the Board has a responsibility to balance the needs of the athletic programs and safety for the students and taxpayers interests.  The Memorandum of Understanding meets the Districts and Fowlers needs.

 

Mr. John Aromando, of 274 Main Street, and a School Board member thanked Mr. Shane and the Board.  Mr. Aromando stated the context of the fields was different than when the approval was given in 1999.  The fields were built as part of the Middle School project, with State funding.  The Greely Road fields are much different that the sports fields on the Tuttle Road.  The fields have been built for competition fields for the High school.

 

Mr. Wyman asked for public testimony in opposition.  There was none.

 

Mr. Wyman asked for testimony that was neutral.

 

Mr. Greg Fowler, of 168 Greely Road, stated the land was sold to the Town; because they wanted it to stay open and not become a housing development.  There was a gentlemens agreement that the land would maintain its rural open character.  He is disappointed in what has happened, and knows that the Board doesnt require things to be torn down.  All of the structures were built without permits.  The block buildings are probably the largest dugouts in the State, they do not blend with the natural rural character.

 

Mr. Manahan asked Mr. Fowler if he was satisfied with the Memorandum of Understanding, he understands its not perfect, but allows the Board to find that the application meets the standards to allow for an approval.

 

Mr. Fowler stated he hopes the Memorandum of Understanding allows that, the agreement is not perfect, but helps.

 

The public portion of the meeting was closed.

 

Mr. Wyman asked about the roofing material on the shed.

 

Mr. Shane stated the current shed is temporary, placed next the parking lot on the wooded side.  The shed is a temporary gray and maroon prefab building that will be removed when the dugouts are finished.

 

Mr. Wyman asked about ADA issues with ramps etc.

 

Mr. Smith stated the dugouts are the only shelters on the site.  They will provide shelter in the case of a thunder storm.

 

The Board discussed the dugouts and asked if they were compliant with ADA requirements.

 

Mr. Smith stated yes.

 

Mr. Copp stated the dugouts are oversized to accommodate a 10 x 10 storage area on the end; he was sympathetic to the Fowlers; if the fields had received approval prior to construction, they would look different.

 

Mr. Wyman agreed, he was a member of the Board for the 1999 approval, and visual impact was important.

 

Mr. Manahan stated the ball fields are a good facility; this has been an unfortunate situation; he commended the District, Town, and Fowlers for their work to come to an agreement.  The ball fields will undergo Planning Board Site Plan Review.  The ball fields are modern and compatible with the suburban rural nature of the Town.  Mr. Manahan stated the ball fields meet the requirements of an Outdoor Recreational Facility Section 104.89 of the Ordinance.

 

Mr. Manahan moved to grant a special exception to M.S.A.D. # 51 an amendment to the 1999 special exception granted in the name of the Town of Cumberland to include construction of dugouts, a storage shed and if necessary, the football field; at 154 Greely Road, Twin Brook Fields, Tax Assessor Map R04, Lot 13 in the Rural Residential 1 district as an outdoor recreational facility subject to Site Plan Review.

 

Mr. Copp seconded.

 

Discussion:  An Outdoor Recreational Facility is only allowed in RR2, not RR1.

 

Mr. Manahan stated the Outdoor Recreational Facility should be allowed in both the RR1 and RR2 districts.

 

Mr. Manahan moved to amend his motion to grant a special exception to M.S.A.D. # 51 an amendment to the 1999 special exception granted in the name of the Town of Cumberland to include construction of dugouts, a storage shed and if necessary, the football field; at 154 Greely Road, Twin Brook Fields, Tax Assessor Map Ro4, Lot 13 in the RR1 district as a Municipal use (Section 204.1.1.2.7); owner Town of Cumberland.

 

Mr. Copp seconded.                                                    VOTE:  Unanimous

 

Administrative Matters

 

1.         Minutes of the August 4, 2005 Board of Adjustment and Appeals meeting.

 

Mr. Copp moved to approve the minutes of August 4, 2005 with minor technical corrections.

 

Mr. Black seconded.                                                    VOTE:  4 in favor (Wyman, Copp,                                                                                                         Black, Wilson)

                                                                                                  2 abstain (Manahan,                                                                                                                 Wilkinson)

 

Adjournment:  9:20 p.m.

 

A TRUE COPY ATTEST:

 

 

 

___________________________                              ______________________________

R. Scott Wyman, Chair                                     Pam Bosarge, Clerk

 

 

 

 

 

 

 

 

 

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