September 13, 2005 Council Chamber
CALL TO ORDER
The meeting was called to order at 7:05 by Chairman LaMarca.
BOARD MEMBERS PRESENT
Sarah Brown, Brett Costa, Herb Kingsbury, Niles Pinkham and Michael LaMarca, Chairman.
ALSO PRESENT
CEO Heather Ross, Fire Chief Dave O’Brien, William Peirce, Hope Jackson, Richard McSherry, Joe Hennessy, Recorder Chris Kudym and others.
Chairman LaMarca introduced members of the Board to the newest member, Niles Pinkham, who was attending his first meeting. He explained to those present the necessity of four affirmative answers to grant any application. Chairman LaMarca then led those present in the Pledge of Allegiance and read the Notice of Appeals.
PUBLIC HEARINGS
1. William Peirce requesting an administrative appeal to the terms of Title 16, Section 12,
Subsection 060.D of the Kittery Land Use and Development Code Zoning Ordinance to appeal the CEO’s determination that the living space above the garage is a “dwelling unit” and to dismiss the CEO’s complaint in regard to property located at 51-53 Rogers Road, Map 9, Lot 114, Kittery, zoned Urban Residence.
A request for a Point of Order was heard. Hope Jackson apologized and said that she represented Bill Bischoff in his appeal and said she realized they were number two on the list but they were concerned about the fact there was only a quorum of the Board present, asking if seven was the correct number since the ordinance said there were two alternates. Chairman LaMarca said there were no alternates and Ms. Jackson said she would like the appeal to be tabled and asked if there was some way to find out if there would be six members present at the next meeting. Chairman LaMarca said that she absolutely could withdraw but that this was a voluntary Board and there was no way of knowing how many would be present, so it was up to her to decide what she wanted to do.
Ms. Jackson asked if any members present knew that they wouldn’t be present for the next meeting. CEO Ross said that no meeting was scheduled for two weeks since they had no appeals that would be ready to bring forward at that time. Chairman LaMarca asked if that one appeal was postponed, would they be able to hear it in two weeks and CEO Ross said that he could re-notice and hear that one case. Chairman LaMarca said that he would be available. Ms. Brown said that she would just add that what had been happening is that this was the number they had been having for at least the past six months and it was rare that they had all the members of the Board present. Ms. Jackson asked if six was more typical than five and Chairman LaMarca answered yes, six was more typical. Mr. Costa mentioned that they hadn’t had a seventh member for a
while. Ms. Jackson said that they would ask to have their matter postponed until the next hearing date.
Chairman LaMarca said to Mr. Peirce that he assumed Mr. Peirce would want to do the same thing. Mr. Peirce said he was curious about a quorum being necessary, that he had spoken with Representative Wheeler who didn’t understand why the Board couldn’t use a majority. Chairman LaMarca said that it was in the Town Ordinance and was not their call, that it would have to be taken up with the Planning Board. After some discussion, Mr. Peirce decided to go forward with his appeal.
Mr. Peirce said he would like to read from a prepared text and, as he passed out photos to the Board, he said he trusted that they saw the garage. Mr. Peirce said that he had tried to build the garage in such a way that would upset his neighbors as little as possible. His neighbor Kate Sutton helped him to design it, which included changes to the design that were expensive but that he had agreed to them.
He said as far as any complaints from neighbors, he thought perhaps they had been under the impression he didn’t have a plumbing permit but that, in fact, he did. He had also received informal approval for living space above the garage when CEO Jim Noel, not Heather Ross, signed his plumbing application. Unlike Jim Noel, she did not want to grant approval for living space and if he had known that before he built, he would not have built the structure in the expensive way.
Mr. Peirce said that there was nothing to be gained by disagreeing with the CEO since the power of the CEO was much greater than his power. He did, however, look at the zoning law and so he had to disagree with her and that the peace and tranquility of the lady living there was at stake. Mr. Peirce said he could not find any law that gave the CEO the authority over who lived in his home or for how long. It seemed to him there were four issues and suggested that the Board make findings of fact on them: (1) Why was this citation issued six months after the CEO visited his property; (2) Can a bedroom and a bath without a kitchen be called a dwelling unit; (3) If it can, does it exist in the zoning ordinance and (4) If yes, what is the definition of a dwelling unit at the present time.
(1) Why was this citation issued six months after the CEO visited his property?
Mr. Peirce said he believed that the issuance of this citation had been politically motivated and that his appointment to the Zoning Board had been delayed because of it. He said that Town employees were governed under the Hatch Act, which prohibited them to use their “office or influence to interfere” in political activities and that, in his opinion, Heather Ross had violated the Hatch Act. He said that this notice had been issued after he had allowed Heather Ross entrance into the bedroom above his garage where the woman was living. He said he believed that the CEO had purposely brought over the assessor to look at the property and, as a result, his assessment doubled. He said that the assessment was fair but that if he hadn’t questioned Heather Ross, it probably would have taken three years to reach the current figure.
Mr. Peirce suggested that the Board take a tight rein on the CEO because of the reach of her authority, which was scary. He said he would also ask the Board to address other issues and that he was not the only one who invested more than $1,000.00 in property only to have Heather Ross deny its use.
(2) Can a bedroom and a bath without a kitchen be called a dwelling unit?
Mr. Peirce said that the kitchen is in the definition of a dwelling unit but that Heather Ross ignored that. He said he didn’t think you could ignore that part of the resolution so would the Board please consider redefining the definition of a dwelling unit. Mr. Peirce said that the woman who lived there was often in the big house, doing laundry, etc., that she had a key to his place and he had a key to hers and that they shared expenses.
(3) If it can, does it exist in the zoning ordinance?
Mr. Peirce said that the CEO implied that he had violated conditions concerning construction, which had been placed on him by the Zoning Board but, as they could see by the Zoning Board letter dated May 31, 2002, the Board voted to overturn the decision of the CEO with regard to setbacks and that setbacks had been the only complaint of the Board.
(4) If yes, what is the definition of a dwelling unit at the present time?
Mr. Peirce said that the definition of part-time occupancy does not exist in the zoning book but even if you assume the CEO had the authority to determine who was a part-time guest, what is part-time occupancy? Is it one week? Is it one month? Is it one year? The York Ordinance defines it as less than one year. Also, please consider the human consequences involved here for the woman who occupies the space who is of modest means and studying to become a psychiatric nurse and he thought the Town should support the efforts of such people.
Mr. Peirce also said that Heather Ross required him to get a new septic design and that design had called for an increase of the use on the property. He said he took a bedroom out of his house and put it on top of the garage so there was no increase of use so he wondered why the CEO did this.
Chairman LaMarca said okay, thank you. Is there anyone present who would like to speak in favor of the application? Anyone opposed? Anyone who would like to speak about the application in any way? Please come up and tell us who you are.
Jerry Tice of 38 Rogers Road, across the street. My question to you people is when the Mossmans sold their house, they had to put in a new septic system because of the amount of bedrooms. Mr. Peirce said he took one out but how many bedrooms are presently in use on that lot? My question is: Is the septic system adequate for the property; it’s a small piece of land.
Chairman LaMarca asked if there was anyone else and CEO Ross answered that this was a nonconforming lot with a nonconforming building in the Urban Residential zone. She said that in the Notice of Violation addressed to Mr. Peirce and Ms. Calaman, the issue addressed was his renting of the space and that it went on to advise them they had 30 days in which to correct the situation. CEO Ross wanted to remind the Board of details that lead up to the issued Notice, including correspondence with the Town Attorney, which was part of the Building Permit Packet. She said that, as far as the septic design, whenever you had extra bedrooms, if you were on a septic system and your system was not adequate to supply the needs of that number of bedrooms, you were required by the State to have a second septic design drawn up.
Mr. Peirce raised an objection, saying he had gone to the office in order to see the evidence packet and that on that date, the office had been closed. He said that Heather was referring to some documents not included in the evidence package and which he had not seen so he wondered if they were admissible. Mr. LaMarca said that was duly noted and asked if there were questions from the Board.
Ms. Brown said that first of all, she wanted to address Mr. Peirce’s concern about new evidence; that she would take correspondence from the Town Attorney to being Heather doing part of her job and not assume they would have to be part of the packet. She said that some times we wish we would like to know what the attorney would think but she wanted to make sure Mr. Peirce didn’t think information was being kept from him. Oftentimes the Board was dealing with an issue they hadn’t dealt with before and they would defer to the Town Attorney. Chairman LaMarca said that some other thing he needed to understand was that this packet was not the Town’s case, it was the applicant’s case. The CEO didn’t have to put her information in there. If an abutter submitted something, it all went into the packet but the Town’s position didn’t necessarily go into the packet.
Ms. Brown said she had concerns about Mr. Peirce’s whole argument. The case really was about: was that unit above the garage a dwelling unit or not. She said she had read the definition as well but, to her, a dwelling unit was a space that was being rented out and as far as where Heather got the authority to determine what a dwelling unit was, Heather was just the mouthpiece for the Town. In the zone Mr. Peirce lived in, he was required to have a minimum of 20,000 feet per dwelling unit and he had two dwelling units on 11,761 square feet and you put in a third dwelling unit.
Ms. Brown said he was really going around the issue and asked if he received money for that space above the garage. Mr. Peirce said that they shared expenses and that was the way they structured it. Ms. Brown said did you not put an add in as a studio for rent?
Mr. Peirce said there had been a sign outside and at the time he had that sign outside his house, the people who were renting the other half of his house and the room above his garage shared the kitchen. Ms. Brown said she was asking about the woman that was living there now and said that this was an example that was for everyone and it was frustrating that Mr. Peirce wanted to be treated differently. Mr. Peirce said if this affected everyone, he didn’t know, he just built a space above his garage.
Ms. Brown said that he was asking them to set a precedent, to go totally against what the ordinance told them. She said it wasn’t fair to tell him, when he had only 11,000 square feet, when everyone else had to have 20,000. Ms. Brown said she hated to be the bad guy but it was pretty clear that he already had rental income and then he went out and got a permit for a storage space that’s now living space that either went with the home he was in or the other house. She said that it would not only be unfair but would undermine families that wanted to do that. Ms. Brown asked what about five years from now when her kids were older and needed more space? There’s living space that goes to a structure and there’s rental space and Mr. Peirce was receiving money. Ms. Brown asked Mr. Peirce if he wanted to say that he was not
receiving money for that. Mr. Peirce said they could call it rent but he called it sharing expenses. Ms. Brown said that if the woman were to leave, he would continue to rent it and that if he wanted to rent out that space he would have to do it fair and square. Mr. Peirce said that people were allowed to rent out a room and Ms. Brown said that referred to a room in your house and he had not asked for permission to make this a living space, he had asked to build a garage with storage space and he had gotten that permission. Mr. Peirce asked if it would be different if he had attached the garage to the house and Ms. Brown said if it was rented out to someone who was paying, it was a dwelling unit, it was not living space that goes with the house.
Chairman LaMarca spoke to CEO Ross and said, you said that on the original Occupancy Permit it said it was not to be rented out. CEO Ross read what had been written on the permit: “This area is only to be maintained as living space for existing dwelling. This area is not to be rented as a unit.” Mr. Peirce said that that was on the original permit before he wanted to put in a bedroom. CEO Ross said to him that she had allowed him to put in a bedroom and bath and Mr. Peirce said no, that had been Jim Noel.
Chairman LaMarca said they were not saying that they had a problem with him making it a bedroom, the problem was that the permit stated specifically it was not to be rented and he personally needed an answer to that, it didn’t matter what he did with the money; that’s what it really boiled down to. Mr. Peirce said he got money from her and she helped him pay the mortgage. He was asked if there had been a rental agreement and he said there had been but when he got that letter, he tore it up; she didn’t have rental rights and he didn’t have landlord rights and if he didn’t rent it, what could he do with this space? Ms. Brown said you originally requested storage space and Mr. Peirce said but one week later he had gotten an informal okay from Jim Noel. Ms. Brown said the informal arrangements were one thing but the
Code was very clear and how could he expect them to allow him to do this and not let anyone else. She said that he was asking them to ignore every zoning ordinance and Mr. Peirce said just to recognize that a dwelling unit has a kitchen like they did in York. Chairman LaMarca said he had to tell him that he didn’t care what York did and read a definition describing a dwelling unit as being used for living, bathing, sleeping, cooking, etc. and sanitary facilities. That’s from the Code; I’m not reinterpreting, there’s nothing about a kitchen, but even at that, a dwelling unit where you were told specifically you could not rent it. Mr. Peirce said after years of having the structure up, while he was here, could they define what he could do with it? Chairman LaMarca said that was not for them to say; he was sorry.
Mr. Pinkham said he had a question: Was she sleeping there but eating and everything over in the other house; would it be considered a dwelling unit if it was just considered a bedroom. Chairman LaMarca said if it was not rented. Mr. Peirce asked if that was the crux of it, that it was being rented, or occupied? Chairman LaMarca said no one said a family member couldn’t use the space but it had to be part of the house. Mr. Peirce said that that was the way it had been originally – a group of three people used the kitchen and one lived above the garage. Chairman LaMarca said, unfortunately, that’s not the way you presented it. The Board was here to approve an appeal that Heather incorrectly applied the ordinances and if he would like to do a different appeal to allow this, that was a whole different story, but the appeal
being presented said that Heather read them wrong and applied them wrong.
Mr. Pinkham asked if he could say something to the gentleman who had asked about the septic unit; that you didn’t have to put in a second unit, but you had to have a plan.
Mr. Peirce said that this lady has her stuff up there and isn’t prepared to move and now am I going to have to pay $200.00 a day? Chairman LaMarca said that the Board was not an enforcement body. CEO Ross said she could tell him it would be turned over to the Town Attorney.
Chairman LaMarca said they needed to move the application of William Peirce to overturn the CEO’s decision that the living space above his garage was a dwelling unit and to dismiss the CEO’s complaint due to its prejudicial timing. Motion made by Mr. Costa, seconded by Ms. Brown. The motion was unanimously opposed by show of hands vote of all those present and voting.
Chairman LaMarca informed the applicant that he or any interested party with standing may appeal the decision of this Board within 45 days in York County Superior Court and that the Board would try to get findings of fact out within seven days of tonight’s hearing.
Chairman LaMarca called for a moment’s recess. A recess was called at 7:45 p.m. Meeting resumed at 7:51 p.m.
2. Robert Reed for Bill Bischoff requesting a miscellaneous appeal to the terms of Title 16, Section 32, Subsection 490.N.2A (Page 316) to replace an existing structure with a new expanded structure at property located at 36 Folcutt Road, Map 25, Lot 23, Kittery Point, zoned Suburban Residence. – Postponed
3. Kittery Fire Department requesting a variance to the terms of Title 16, Section 12, Subsection 110.5 (Page 28) of the Kittery Land Use and Development Code Zoning Ordinance in order to reduce the rear setback to 23 feet at property located at 5 Gorges Road, Map 13, Lots 5-13/5-14, zoned new Commercial-3.
Chairman LaMarca said that he saw the entire Kittery Fire Department was there and invited the Chief to make his presentation.
Chief Dave O’Brien said thank you; good evening, I’m the Kittery Fire Chief and I would like to thank these 30 firefighters for being here – they have a vested interest in this and I appreciate that they’re here. The Chief read from a prepared statement, which he handed to each of the Board members, highlighting the intensive search for an appropriate piece of available property for new construction.
Chairman LaMarca thanked the Chief and asked if there was anyone present who would like to speak in favor of the application, in opposition to it, or speak about it in any way.
CEO Ross said that this property consisted of two conforming vacant lots in the Commercial-3 Zone, although the deed referred to the property as being one lot. Chief O’Brien is proposing that a building be constructed at 23 feet to the back of the property line and, therefore, needs a variance from the Board of Appeals.
Mr. Costa asked if this had to come in as a variance and CEO Ross said yes, because it was a vacant piece of land and they were looking to encroach on the setbacks. Ms. Brown said it looked like it was mentioned in the packet that the two lots should be combined. CEO Ross said she did mention to Chief O’Brien that the tax maps showed them as two but the Town Attorney said they were combined; they hadn’t been combined by tax map but by deed.
Ms. Brown said she had the same concern, that it looked great to her - that if there ever was a time to overlook “A,” this was the time. There’s no reason to deny this, we can decide to overlook it and it makes perfect sense but what if some irate neighbor decides to take us to court, we’d lose, so it reiterates the same question as Brett: Why is it not presented as a miscellaneous appeal? CEO Ross said because it was a vacant lot and Ms. Brown said she would rather bend rules on the type of appeal and grant it as miscellaneous. Mr. Costa noted language that said relaxation of title where such relaxation would not be contrary to the public and peculiar to the property and not the applicant.
Ms. Brown asked CEO Ross if it was her understanding - when she took a look at the property - there was not a shed or anything on it? CEO Ross said it was vacant and Chief O’Brien said he could put one on it tomorrow. Ms. Brown said a definition was different than the rules.
Mr. Kingsbury said he didn’t suppose the Chief had approached the abutter to see if he could purchase 7,000 more feet. Chief O’Brien said the abutter had been approached but that no, he wouldn’t sell; that the Fire Department owned the controlling piece of property and it was only at the rear where it really prohibited their being able to maneuver. He said that there would be no encroachment behind them and that they would never be able to find a piece of property like this one because it was the ideal location for the Town and the station.
Mr. Kingsbury said it was just “A” and he didn’t know what to do with it. Ms. Brown said that Page 211 set out different types of appeals and their criteria and wished the Town Attorney was there to help them. Mr. Costa asked CEO Ross that if they got a building permit after the fact, could they come back in - would it then be miscellaneous? CEO Ross said no, they couldn’t even get a building permit without setbacks; the Town would be unable to move forward to the Planning Board without this being addressed. Chairman LaMarca said we would be making the building nonconforming. Ms. Brown asked, if we have the authority to grant the variance, then wouldn’t we have the authority to ask them to apply for miscellaneous? CEO Ross said they would have to see that it fit the criteria under miscellaneous. Chairman LaMarca
said that was not the problem, that they were asking for a variance and although it would definitely be for the betterment of the Town, they would be voting or approving something they didn’t ordinarily do, so they needed to be setting a precedent. Mr. Kingsbury said that the Code read that a variance can be approved only if it meets the four criteria and Ms. Brown asked the Chairman if he would have less reservation about nuances of the rules of what they were supposed to apply under than hearing them apply under a variance? Chairman LaMarca said the problem was they were being asked to change conforming to nonconforming and Ms. Brown said but under miscellaneous, there is no “A” and we grant this all the time under miscellaneous, it’s a completely different standard - they don’t have to meet the four requirements.
CEO Ross read from the Code and there was continued discussion regarding the different standards that governed both miscellaneous appeals and variances, as well as special exceptions. Ms. Brown asked: Don’t we have the authority to grant this if it is being tried under anything other than variance? Chairman LaMarca said he didn’t know that they did.
Mr. Kingsbury wondered if they should ask the Town Attorney if there was any way they could do this. Chairman LaMarca said they might be setting themselves up for future setbacks and that the rear setback was the problem.
Mr. Kingsbury assured the firefighters that they were trying to figure out a way to do this and Mr. Costa said he was wondering if they could get a permit for a building, then they could come back and Ms. Brown reminded him they could not come back as a miscellaneous appeal when they were encroaching upon setbacks. Mr. Costa said that they granted setback relief in the past and Chairman LaMarca asked the Chief what was behind the property. Chief O’Brien said it was a big drop off, that there was no wet zone in there, that it was all woods.
CEO Ross asked if there was any way to shift construction to the left and the Chief said they tried that and they still infringed and that the design was planned around future growth. Mr. Costa asked the Chief if the whole building was needed right away and the Chief said yes. Ms. Brown asked if there was any part of that building - though she understood they couldn’t build part of the building - but if there were anything on that lot, they wouldn’t be able to apply under a variance, they would have to apply under miscellaneous. Chairman LaMarca said it was kind of a “Catch 22.” Ms. Brown asked if there was any other structure that could be put on the land and the Chief said there was a storage shed on Walker Street that would go with this and Ms. Brown asked the CEO about the storage shed because the Board’s
problem was with the variance. The Chief said they did it that way because that was what they were asked to do. Ms. Brown wondered if they put the storage shed there, would they be all right? CEO Ross said that legally they couldn’t get any permits to move it because the shed still would have the same setbacks. Ms. Brown said, and of course, they would still have to ask for permission to put something in under a variance.
Chairman LaMarca and the Chief conferred about what would have to happen to the design plans in order to meet the setback. Chairman LaMarca said the first thing he saw was the building was positioned so that it followed Gorges Road and the lot line was angled so, as he looked at this plan, he actually didn’t see a problem with the left side or a huge problem in the middle. However, he said, they lost their utility spot and that would put the ladder way in the back, making it very tough to get around those engines; it really would not be safe so having space behind there was vital. The Chief said it was really crucial because right now they had unsafe conditions in their other two houses.
Ms. Brown asked if they could swap the two sides and the Chief said they tried that and they were still seven feet back where the ladder was; that they had played with the plan for weeks trying to meet a 30 foot setback and it killed them. When they presented the property to the Planning Board, he didn’t have a design for the building so they were stuck trying to fit what they needed onto what they had. The Chief suggested that if there were concerns about the setbacks from the people that were behind them, they would have been there since they had been notified.
Chairman LaMarca asked if there were any questions and Mr. Costa said he had no problem approving the plan since there was nothing on the property so something would have to be built on it and because it was for the Fire Department, if they couldn’t get that ladder in there, the building was useless and so, to him, that got around the problem of a variance. To him, it puts it that the building had to be that size.
Ms. Brown asked, what about - I’m usually the one who is not willing to bend the rules! – what if we would put a clause in the Findings of Fact that we were not setting precedent but that this was a special exception because it was the Fire Department? Chairman LaMarca said they had to be careful, that someone would say: well, you let them so...and Ms. Brown said, because it’s the Fire Department and they’re the only ones we would ever let do it. Mr. Costa said and this is for the safety of the Town. Chairman LaMarca said they were going to have to approve or not approve. Let’s take a minute, we’re going to have to vote on this; what it means is we are either going to relax the boundary definitions or the setbacks in order to allow.
Mr. Costa asked if there were houses on this street and the Chief said no, there was one piece of property that was the old Day’s Inn and the other abutter was Leo Guy’s property. Chairman LaMarca said that was the new used car sales place and hadn’t they found that
Mr. Guy’s property was too close and he wasn’t going to change it, it was either the setback or we could change it by the average setbacks of the area. Ms. Brown asked how they could get around “A?” Chairman LaMarca said they were just allowing the use of the setback because it was average to buildings in the area, that they may not be greater than average lots next thereto on either side – so, what’s good for one is good for the other.
Mr. Kingsbury asked if they could refer this to the Town Attorney and ask him if there was any way they could do this even though the Code said no. Mr. Costa said, well, it said no if you chose to look at it that way, and they had two more continuous lots’ average setbacks. Chairman LaMarca said what that would mean is either the designer or the Chief - let’s just say the average building setbacks could be relaxed, it doesn’t mean they could be closer to there, but less than 50 feet closer to the road, that would give them the space in back they needed. Someone said that if the building were moved forward, maybe even angled, it would be 50 feet from the road. Chairman LaMarca asked if that would fit the Chief’s needs, if they went with the average building setbacks – they would relax the street side setback and
if the Fire Department moved the building so that it basically followed the line, heading more toward Route 1 and then they could have their 30 feet in the back. In other words, the left side would move six feet, the right side would move seven feet – for discussion purposes only. The Chief said that would jeopardize the ladder truck in front but if that’s what they had to go with, they would. There was discussion concerning the difference between the driveway and the road and doing it that way would make the driveway considerably steeper and worsen that condition. Ms. Brown asked couldn’t that land area be levied out and was told that the whole thing could be lowered but that caused a problem at the other side of the lot. The Chief said that the ideal situation was having a ramp that went up so that water drained in front of the building.
Ms. Brown said she didn’t want to undermine - that she knew it was not ideal - but wondered about if it were done so that the footprint of the building could be made one level? Chief O’Brien said that, at a cost it could be done; that would probably mean having more fill brought in.
Chairman LaMarca said he had to tell them that he saw a little window and couldn’t see any other window that would allow them to remain a Board of any standing. In his opinion, he saw a legal way they could grant this, with an adaptation of the building; that was the only way he could see. Chairman LaMarca asked if that were done, how did everyone feel? Basically, he said, what this said was frontage setbacks could be relaxed if the other parcels in the area - and in this case, there was only one - don’t meet code. If they were all 10 feet he said to the Chief, than you could be ten feet or greater. Mr. Kingsbury said there was a daycare center there right now and CEO Ross said she thought that building was further back, that it looked like it was at least 50 feet back.
Ms. Brown said she would like to ask again those of them, those of the Board members that feel they just couldn’t grant under a variance - would they be willing to grant under a miscellaneous? She said that she personally was more comfortable with going against what it said under miscellaneous, that she thought if they could find some way to have them file under miscellaneous, then the Board wouldn’t have the four criteria to worry about.
Mr. Kingsbury said he just couldn’t see it under a variance.
Mr. Pinkham asked if they had done anything with averaging and CEO Ross said that averaging was allowed strictly through her office. Chairman LaMarca said it boiled down to were they going to allow it and live with it? Ms. Brown asked that if it were up to the applicant - if it was heard as a variance and turned down - could the applicant then have it heard as miscellaneous? CEO Ross said that once it was voted on, an applicant would have to reapply. Ms. Brown said she knew they had allowed people to change and wandered if the Board still wanted to hear it as a variance. Chairman LaMarca said there were two ways it could happen: one way was that the Board voted to have them reapply; the other was if they felt it would fly - and the applicant chose to and we hadn’t voted - then the applicant could change the type of appeal and then the
Board could look at it under miscellaneous. But, he said, he had to check to see if it would fly under miscellaneous. Ms. Brown said that she and Mr. Kingsbury wouldn’t object if they had it changed to miscellaneous.
Chairman LaMarca said that before they did anything, he would like everyone to read 16.28.07 (Page 273) and read part of that language which allowed a relaxation of setbacks under certain conditions. Chairman LaMarca asked the Chief if he wanted to change and the Chief said he did believed that they would like to change and Chairman LaMarca said that when he read the motion, it would just change from a request for a variance to a request for a miscellaneous appeal.
After the applicant requested a change in the type of application being presented to the Board from a variance to a miscellaneous appeal, Ms. Brown made a motion that the application of the Kittery Fire Department requesting a miscellaneous appeal to the terms of Title 16, Section 12, Subsection 110.5 (Page 28) of the Kittery Land Use and Development Code Zoning Ordinance in order to reduce the rear setback to 23 feet at property located at 3 Gorges Road, Map 13, zoned Commercial-3, be approved. Construction to be in accordance with a schedule submitted and signed and dated by Chief David O’Brien and Michael LaMarca, Chairman. Mr. Costa seconded the motion and, based on 16.28.070 of the Kittery Land Use and Development Code Zoning Ordinance, the motion was unanimously approved by a show of hands vote of all those present and voting.
Chairman LaMarca informed the applicant that this approval was not the granting of a Building Permit but merely gave authority to the Code Enforcement Officer to issue said permit and that they or any interested party with standing could appeal this decision of this Board within 45 days in York County Superior Court.
Ms. Brown said that the next one better be easier! Given the expense of the surveys, a copy of which had been given to each member, the Board decided to retain one copy and returned the rest to the Chief for future use.
Chairman LaMarca said that next on the list, they had two motions from the Fire Department and that he had a question – that the Notice said Kittery Point Fire Department on one of the motions and Chief O’Brien said it should say the Kittery Fire Department not the Kittery Point Fire Department. Chairman LaMarca said that the next two were the same appeal and asked Chief O’Brien to present one of them – that the first one was the miscellaneous appeal which was probably a good idea.
4. Kittery Fire Department requesting a miscellaneous appeal to the terms of Title 16, Section 12, Subsection 100.D (Page 242) of the Kittery Land Use and Development Code Zoning Ordinance to make a ten-foot addition to the front of the building footprint, moving ten feet closer to Haley Road at property located at 640 Haley Road, Kittery Point, Map 36, Lot 5, zoned Local Business.
5. Kittery Fire Department requesting a variance to the terms of Title 16, Section 12, Subsection 100.D (Page 242) of the Kittery Land Use and Development Code Zoning Ordinance to make a ten-foot addition to the rear of existing footprint for Mitchell School Lane at property located at 640 Haley Road, Kittery Point, Map 36, Lot 5, zoned Local Business.
Chief O’Brien returned to his prepared statement, explaining the Department’s need for an appeal and the difference between the two motions. As he was reading the statement, the Chief interjected that the ten feet in the front applied under the miscellaneous appeal and the ten feet in the rear, he believed, applied to the variance and said he wasn’t going to even read Letter A.
The Chief said that if they added on to the front of the building it would put their apparatus sitting out in the center of Haley Road; that the Department would love to find another parcel of property that could accommodate their needs but that the Kittery Point Fire Station property went everywhere, and that adding to the rear of the building allowed them to maintain the already inadequate space in the front.
The Chief said that Mitchell School Lane had been built after the fact and that no one knew where it was until six months ago and that they had discussions with the abutting church to let them know they were not trying to take their land.
CEO Ross said that this was a conforming lot with a nonconforming building located in both the LB and Commercial-3 zones. She said there were two proposals before them: the miscellaneous appeal requested a ten foot addition to the front of the building footprint which was zoned Commercial-3; the variance pertained to the rear of the building, which was in the Local Business zone, and that both proposals brought construction to less than the required setbacks. CEO Ross also agreed that both motions should be reviewed at the same time, at least for discussion.
Chairman LaMarca asked the Chief to clarify that he was not looking for both motions to be approved, but either one or the other and the Chief said that was correct. Chairman LaMarca said that the other question was if the ten feet were added to the right toward Haley Road, what would the setback be from that? CEO Ross said that it was a 30 foot required setback because that was in the Local Business zone and they were proposing putting in ten additional feet. Chairman LaMarca said that they were obviously talking about the one corner and they were just going further in to the conforming part of the building and CEO Ross said that was correct. Chairman LaMarca asked if everyone got that and did it make sense to everyone – if they granted what was now the miscellaneous appeal and allow the addition to be built on the School Lane side,
they would be encroaching further toward Mitchell School Lane. If they granted in any way the other side of the building, even though it got closer to Haley Road, they would not, and also, we would say it would stay within 17 feet. Mr. Kingsbury asked, so the miscellaneous appeal is to allow a ten foot expansion to the front to Haley Road? CEO Ross said yes, the variance is to allow ten feet in the rear more toward Mitchell School Lane.
Chief O’Brien said that they would prefer adding to the rear and Mr. Costa asked him why a variance. CEO Ross said it was for the encroachment upon the setback and that was Urban Residential. Mr. Costa said he would absolutely vote negative to go closer on Haley Road. Mr. Pinkham said there was a 25 mile speed limit coming down Mitchell School Lane where there were buses and people. Ms. Brown said they didn’t really have a choice because they couldn’t possibly meet “A” of the variance. Chairman LaMarca wanted to confirm his understanding, because the maps had been misplaced, that the miscellaneous appeal was to bring construction closer on the Haley Road side and the variance would be to get closer to School Lane. He agreed the variance would never fly but he thought the miscellaneous appeal would. Mr. Costa
said he was just not convinced that the one on the back had to be a variance. Mr. Kingsbury asked why couldn’t they make the one that was now a variance a miscellaneous? Chairman LaMarca said he believed that first one, which was a miscellaneous, would fly and Ms. Brown said: but the Chief would much prefer to have the ten feet going to School Lane and the fundamental reason was for safety.
Chairman LaMarca said he had to be honest though, they were not on Haley Road, they were on School Lane or the church parking lot. Discussion followed concerning traffic and safety issues and the Chief said he had spent $250,000.00 on a new piece of apparatus on which he had to spend an additional $50,000.00 to refit it in order for it to fit into the station and still had three feet outside onto the ramp. Chief O’Brien said they owned that piece of land on Mitchell Road on the other side but there was no place to build on it.
Chairman LaMarca asked about the possibility of them activating lights on Haley Road and the Chief said, yes, that was possible. Mr. Costa asked if this was a nonconforming building and CEO Ross said the building was nonconforming, the lot was conforming.
Ms. Brown asked if people were interested, she thought they needed to have this put under miscellaneous. Chief O’Brien said tell me what to do and we’ll be glad to do it. Ms. Brown told the firefighters they were going to give the Board a bad reputation and they voiced, along with the Chief, that they appreciated what the Board was doing and they had known it would be difficult.
The Chief said that most serious fires happened at night when there was less traffic, but it was a very dangerous place right now and not adding ten feet would make it untenable. Chairman LaMarca asked how close they were to setback from the rear side? CEO Ross said it had to be 30 feet. Chairman LaMarca told the Chief that the CEO said they were about 40 feet from the closest point and they only needed to be 30 feet. The Chief said they had actually drawn that up; they were trying to maintain the footprint to save money but also, there was the possibility of having it built in the winter and they weren’t going to raze it all at once because they needed to maintain fire protection on the Point. Chairman LaMarca said he absolutely could sympathize with that, no question, but the Board was in a tough situation because there was a way – bottom line, there was a way – and actually two ways to stay within the footprint but he knew what the Chief meant, they were really close to the road.
A second way was that the building could be moved back to give you the space. Chairman LaMarca said, so, we would have to ignore two ways it could be done to grant what you want. The Chief said there must be something about compromising safety and they had played with this and talked about angling it differently, but they still couldn’t meet requirements; he didn’t think they had 40 feet in the back. Chairman LaMarca asked the Chief if he could come up and show him on the fire station side where Haley Road was. He said that he had been reading the map wrong and now he knew where they were at.
Ms. Brown said to CEO Ross that she really didn’t understand why the one they wanted was the variance but the one they didn’t want was the miscellaneous. CEO Ross said there already was a structure but they were looking to encroach; under the variance, they were going four feet closer. Chairman LaMarca said, so, we’re simply approving a change of setback – for the miscellaneous appeal, they’re looking to go closer to the front; under the variance they’re looking to going no closer than 13.5 feet from where they are now. Ms. Brown said it seemed to her that it was the same as the other. Mr. Pinkham said that safety-wise it made sense to put it in the back.
Ms. Brown said she also had a concern that she thought was important to the Town - that when people came before them and were asking for special permission with the argument that it would be so much more expensive, that was one thing, if it was their own money, but the Board had a responsibility if they were asking the taxpayer to spend a lot more money. She didn’t mean to demean their ordinances but had to say, as far as that went, that was a really special circumstance for her and they needed to find a way around it. Chairman LaMarca said there was a way around it but it would move the footprint. Chief O’Brien said it was not only a lot more money, it would compromise fire protection for the entire district because it would mean razing the whole building and putting apparatus somewhere else other than the Point.
Mr. Costa said that under 16.28.180 (Page 276), they had waiver authority because the Planning Board found that under special circumstances, the requirements could be waived. Chairman LaMarca asked if they could approve contingent upon Planning Board approval. Chief O’Brien said that the Board wouldn’t need Planning Board approval. Chairman LaMarca read the waiver and said if the Board said, yes, we want to give the Department a waiver, the Planning Board still had to say, yes, this is a special circumstance. CEO Ross said she didn’t think the Board could waive it based on the Planning Board waiving it and Chairman LaMarca said that was like the cart going before the horse. CEO Ross said the Department was trying to avoid bringing it before the Planning Board. Chairman LaMarca said he was with them on that. Mr. Kingsbury
asked what the problem was going to the Planning Board and CEO Ross said it wouldn’t fit the criteria. Chairman LaMarca asked if it was the CEO’s understanding that if the Department went before the Planning Board, they could ask for a waiver of this particular thing? CEO Ross said she didn’t think so, that she’d never seen it done. Ms. Brown said it seemed that the language of this clause spoke directly to the situation. Chairman LaMarca said he saw what she was saying; if the Planning Board waived it, they wouldn’t have to come before them, especially where the school had been added after the fire station. Ms. Brown again said that she really thought this waiver applied. Chairman LaMarca said, well, if that was the way it went, that was not them but the Planning Board. Ms. Brown asked if this had been suggested to the Department? CEO Ross said she could give them information Ms. Brown said, but this is a special case and couldn’t we, as a
zoning board, make a recommendation asking the Planning Board to view it that way? CEO Ross said she suggested it come as a letter to the Planning Board from the Zoning Board. Ms. Brown said they would write a letter that this particular case should be exempted. Chairman LaMarca told the Chief that if the Board didn’t vote on this application, and the Planning Board said no way, he could come back in front of them; if they voted and it was turned down, the Department would have to wait a year.
Chairman LaMarca said he’d be honest with him, that he fully understood why he wouldn’t want to put it on the right-hand side, although he didn’t want to pay any more tax money to move the footprint, that didn’t mean he wouldn’t vote for it, but he would like to see the Chief pursue this other avenue. CEO Ross asked if they would just want to vote on the miscellaneous appeal? Ms. Brown said no, because if the Board voted yes, it took away the importance of receiving a waiver and the Chief wanted to get a waiver. Chairman LaMarca suggested they just postpone it, that it happened all the time. Chief O’Brien said: Let me see if I understand – with a letter from you to the Planning Board, I would go in front of them and ask for this waiver. CEO Ross said she didn’t know if they would hear it
because the Department didn’t have an application. Ms. Brown explained that the Board, in its letter, would ask them; they would just say, would you be willing to grant this project this waiver? The Chief said, so, with the letter to the Planning Board and their agreement to hear the request, if they said yes this is a special circumstance, then its done and we get a permit from Heather to build a fire station, am I right?
Chairman LaMarca said yes; the second part was if they said no, why not come back here with a miscellaneous to move ten feet to the front. The Chief said, so, you need me to say I withdraw the variance and postpone the miscellaneous appeal pending the results of the Planning Board appeal on the waiver? Ms. Brown said she thought they could just postpone both. Chief O’Brien said he understood; they would leave both of them. Ms. Brown said it was just that they’d never dealt with this before and were trying to explain to him when they didn’t understand it themselves. Chief O’Brien said he was going to play the hand as it was dealt. He said, we’re stuck, then – all of a sudden we’re a corner lot. Ms. Brown said she hoped the Chief understood that they were really guessing on some of these things and
were hoping that the Planning Board would respond positively to their letter requesting that the Department’s appeal be considered a special circumstance. The Chief said he really appreciated what the Board members present had done and he would go before the Planning Board and looked forward to that letter. Chairman LaMarca said he would have it tomorrow. The Chief clarified his understanding saying: when I get a copy of it, I go to Jim and say, what can you do for us, can we have 15 minutes before you?
Ms. Brown asked the Board, why take a chance with that when you’re dealing with public health and safety? Mr. Pinkham asked the Chief how soon he would proceed and the Chief said that the longer they took, the more money it would take to build. Mr. Costa said it was the same thing, why couldn’t they use it? Chairman LaMarca said that, again, the Chief would have to say he wanted to change the type of appeal. Chief O’Brien asked if they were talking about 16.28.070 and, as he said before, he would definitely change the variance to miscellaneous and, in fact, he wanted to change it. Chairman LaMarca said okay, so, now they were first voting on the original miscellaneous appeal, which was the addition to the right side of the building toward Haley Road. Chief O’Brien asked if it was possible to withdraw that one and
Chairman LaMarca said, absolutely. The Chief said okay, I withdraw that one. Chairman LaMarca asked if anyone else had anything before they moved the application.
After the applicant requested a change in the type of application being presented to the Board from a variance to a miscellaneous appeal, Mr. Kingsbury made a motion that the application of the Kittery Fire Department requesting a miscellaneous appeal to the terms of Title 16, Section 12, Subsection 100.D (Page 242) of the Kittery Land Use and Development Code Zoning Ordinance to make a ten-foot addition to the rear of existing footprint for Mitchell School Lane at property located at 640 Haley Road, Kittery Point, Map 36, Lot 5, zoned Local Business, be approved. Construction to be in accordance with a plan submitted and signed and dated by Chief David O’Brien and Michael LaMarca, Chairman. Mr. Costa seconded the motion and the motion was unanimously approved by a show of hands vote of all those present and voting.
As the Chief thanked the Board, attending firefighters applauded.
Chairman LaMarca said they had to do Findings of Fact and Conclusions. CEO Ross said they just had Bischoff for the next meeting; there were no other appeals, but to remember the other Board Members who were not there.
FINDINGS OF FACT
Application No. 1 – William Peirce
1. Mr. Peirce requested an administrative appeal in the belief that the Code Enforcement Officer had incorrectly determined that the living space above his garage was a dwelling unit and wanted the Board to dismiss the CEO’s complaint.
CONCLUSIONS
1. The Board found that the living space was, in fact, a dwelling unit and also that
Mr. Peirce had violated an Occupancy Permit issued him by renting out the space. The Board unanimously denied the appeal.
FINDINGS OF FACT
Application No. 2 – Robert Reed for William Bischoff (Presented by Hope Jackson)
1. The applicant requested a miscellaneous appeal to replace an existing structure with a new expanded one at property located at 36 Folcutt Road, Kittery Point.
CONCLUSIONS
1. The applicant requested that this appeal be postponed until the Board next met on September 27, 2005 and the request was allowed.
FINDINGS OF FACT
Application No. 3 – Kittery Fire Department
1. The Kittery Fire Department requested a variance in order to reduce the rear setback to 23 feet at property located at Gorges Road, Kittery.
CONCLUSIONS
1. This property is a conforming vacant lot on which the applicant wanted to build a nonconforming building to 23 feet to the back property line.
2. The applicant changed his variance type application to a miscellaneous appeal and based on 16.28.070, the Board found unanimously that the relaxation of the yard requirement involving width would be approved.
FINDINGS OF FACT
Application No. 4 – Kittery Fire Department
1. The Kittery Fire Department requested a miscellaneous appeal to add ten feet to the front of property located at 640 Haley Road, Kittery Point.
CONCLUSIONS
1. The applicant withdrew this appeal.
FINDINGS OF FACT
Application No. 5 – Kittery Fire Department
1. The Kittery Fire Department requested a variance to add ten feet to the rear of property located at 640 Haley Road, Kittery Point.
CONCLUSIONS
1. The applicant changed his variance type application to a miscellaneous appeal and also based on 16.28.070, the relaxation of the yard requirement involving width was unanimously approved by the Board.
Chairman LaMarca said he had one last thing, that they had copies of two sets of Minutes, August 9 and August 23, to approve and he had a couple of changes on August 9. Just before Public Hearings in the last sentence, it should read: “as they were withdrawn by the applicants.” The second one for August 9 was on Page 7, the first paragraph should read “Chairman LaMarca means it says even if it was two lots not one, he would have to.” He said he had nothing on the 23rd.
ADJOURNMENT
Chairman LaMarca made a motion to adjourn at 9:45 p.m. Mr. Costa seconded the motion and a vote was taken with all in favor.
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