APPROVED MINUTES
TOWN OF KITTERY
BOARD OF APPEALS
April 11, 2006 Council Chamber
CALL TO ORDER:
Chairman LaMarca called the meeting to order at 7:00 p.m.
BOARD MEMBERS PRESENT:
Rich Balano, Brett Costa, Vern Gardner, Herb Kingsbury, Niles Pinkham, Sarah Brown, Secretary and Michael LaMarca, Chairman
ALSO PRESENT:
CEO Heather Ross, Recorder Chris Kudym, Robert Reed, Jim Shannon, Karen Burbank, Tamara Turcotte, Brian Bourque
Chairman LaMarca introduced Rich Balano, the newest member of the Zoning Board of Appeals, as well as other Board members, and led those present in the Pledge of Allegiance. The Chair informed Board members that, effective immediately, Shelly Bishop would be their contact person at Town Hall for all packages, etc. The Chair then proceeded to outline the hearing procedure and read the Notice of Hearings.
PUBLIC HEARINGS:
1. Continuance: Robert Reed, on behalf of Robert Goldman, requesting a Miscellaneous Appeal to the terms of Title 16, Section 12 (Page 256-1) of the Kittery Land Use and Development Code Zoning Ordinance in order to construct a 6’x28’ porch entry at property located at 94 Goodwin Road, Map 53, Lot 2-1, Kittery Point, zoned Rural Conservation and within the Shoreland Zone.
2. Continuance: Robert Reed, on behalf of Robert Goldman, requesting a Miscellaneous Appeal to the terms of Title 16, Section 12 (Page 256-1) of the Kittery Land Use and Development Code Zoning Ordinance in order to construct an 8’x29’ expansion of a second floor over existing 8’x29’ brick deck at property located at 94 Goodwin Road, Map 53,
Lot 2-1, Kittery Point, zoned Rural Conservation and within the Shoreland Zone.
Chairman LaMarca invited Mr. Reed to come forward to address the Board. Since he was representing Mr. Goldman on two separate applications concerning the same project, Mr. Reed asked if the Board wanted him to combine them or present them separately. Chairman LaMarca suggested he make the entire presentation and the Board would vote on the applications one at a time.
Chairman LaMarca asked that the record show Brett Costa had arrived, 7:06 p.m., and would be hearing this appeal.
Mr. Reed passed out photographs to the Board of the existing house, saying his company was Robert Reed Associates, Residential Designer and General Contractor located in York. Referring to the photos, he said the Goldmans had purchased the house on Gerrish Island in December of 2005 from the Catalanos. Prior to purchase, the Goldmans contacted him and asked for different ideas; they loved the location but weren’t excited about the exterior look of the house or how the interior was laid out. Looking at the front elevation, he said, their proposal was to remove the turret, allowing them to change the foyer stairs, which were right over the front door. The issue was the adjacent wetland - the 100-foot setback cut through the building - and was why
they were there. He said they made sure they didn’t make the porch any closer to the wetland; this Appeal was primarily necessary because this wetland was greater than one acre in size (this one being 1.1 acre in size), thus requiring any work within 100 feet to go before the ZBA. The current closest point to the wetland was 52 feet, the closest point of the porch would actually be 62 feet and, again, no closer than two existing facades. The porch would be supported by two sonatubes, creating a minimum of soil disturbance. Again, it was just a six-foot deck with a porch with a roof on it and he said that pretty much covered the first application.
Moving to the second application, Mr. Reed said, in an effort to give the Goldmans a little more of what they wanted in regards to the first and second floor living area, they created an addition, which was outside the 100-foot setback, and for which they currently had a Building Permit.
Mr. Reed referred to a piece that had not been built upon or changed, which was why he was before them. They wanted to bump out the existing dormer line, not getting closer than the existing building, but providing light and ventilation for the upper two bedrooms, as well as allowing this construction to be more uniform and tie the new building in with the existing. The other piece was, in order to do this, the existing porch really needed to be rebuilt to the support additional weight and they were looking for permission to rebuild the existing roof - not expanding it, just reconstructing it - to be able to carry this new dormer piece. Again, both of these proposals were no closer to the wetland than the existing building.
Ms. Brown asked him if he could talk about what was underneath it and Mr. Reed explained that the existing porch had an eight-foot poured concrete foundation with a concrete slab on top of it and then brick pavers that were placed on top of that, which wouldn’t be expanded at all. Ms. Brown asked if he meant that even the patio wasn’t coming out at all and Mr. Reed said that was correct; that area would be replaced with a wood deck, in the same configuration, only in wood. Mr. Reed said that completed his presentation and he was open to any questions.
Chairman LaMarca thanked him and referred to the first Appeal, which was the porch, not the dormer, asking if there was anyone who would like to speak in favor of the application, opposed to it or about it in any way? Hearing no response, the Chair then asked for the CEO’s report.
CEO Ross said this was a conforming lot with a nonconforming house within the Rural Conservation and Shoreland Zones. Mr. Reed was proposing to construct a 6’x28’ porch in front of the house. Table 16.12 required a 100-foot setback from a wetland greater than one acre in size and the wetland on the property was 1.1 acres in size. At its closest point, the house was 52 feet from the wetland and the proposed addition of the porch was scheduled to be 62 feet.
Chairman LaMarca asked for questions from the Board and Mr. Kingsbury said he didn’t have a big problem with the porch because it was within the confines of the extended wings.
Ms. Brown wanted to confirm with the CEO that, with regard to the porch, the issue they were concerned with was the wetland, not the shore land, and CEO Ross said that was correct.
Ms. Brown said she had gone passed the house but the pictures Mr. Reed supplied were very helpful; they were basically going to fill in the parts that came out and it was just going to be a traditional porch. Mr. Reed said that was right and that it would have an asphalt roof to match the house.
Ms. Brown also didn’t have a problem with that.
As Mr. Balano viewed the photo, Ms. Brown explained that she usually was a stickler when it came to wetland setbacks but, given the fact they were just filling in and not getting closer than the two pieces that came out already were. Chairman LaMarca also explained that they were very restricted on what they could and could not do with wetlands and shore land, and pretty much all the Board could do, if a proposed project met the criteria, was to allow them to go “no closer than.”
Ms. Brown said she had less of a problem with this in particular because it was actually boxed in. A lot of times, they would see a project where someone wanted to do this but had just one part coming out and, especially if the porch was on the side closer to the wetlands, she would have a problem with that because she would view it as actually expanding the nonconformity, but because this had two sides - it was boxed in on both sides - to her, it was not really a problem.
Mr. Balano’s concern was it seemed to be on the side of the wetlands and Ms. Brown replied, but the two “wings” were already coming out; the left wing was actually the closest to the wetlands side and, to her, if that left wing wasn’t there, she would probably have a problem with the porch being filled in because she would feel that would make it more nonconforming but because that left wing already came out to the wetlands - and he was right, that was the side that was closest to the wetlands - that piece already being there made it “less offensive.”
For the record, Mr. Gardner and Mr. Costa had visited the property.
Mr. Balano had one last question, which concerned a letter from the Chairman of the Conservation Commission pointing out their obligation to make decisions that brought properties into less nonconformity, asking how they dealt with that regarding this project. Chairman LaMarca replied, again, the addition of this porch did not increase the nonconformity; they were not getting any closer, so they were not increasing the nonconformity, they were back another nine feet from the wetland. Mr. Balano said he hadn’t read that part, but in terms of the direction from the Comprehensive Plan asking them to make decisions that brought them into less nonconformity, he wondered how they dealt with that. The Chair replied that, historically, the Conservation Commission’s position had been,
regardless of the situation, if it was within the 100 feet, they didn’t want to see it done. The precedents that had been set by the Board, probably before any of them had been on, was the “no closer than,” you couldn’t get closer, but the Board was able to allow expansions in regards to boundaries to wetlands, as long as it was no closer than what was already there.
Ms. Brown said she would say that was open to interpretation and there were a lot of ways to view what Mr. Balano was bringing up. Although she was probably the strictest, there might be some people on the Board that viewed any expansion as not allowable and, as the Chair had said, the Conservation Commission’s approach was they didn’t want to see anything done that didn’t fully meet the setbacks but there was all sorts of movement in there. He could go along with the Commission, which she thought was a completely valid way of looking at things, but he might also see that if they were to follow that 100 percent, people wouldn’t be able to do anything. That was why she tried to find some sort of middle ground and, again, the
fact that the left wing was already there, to her, was a deciding factor. If it wasn’t, and they would see that in the next case, she would have more questions about it.
Addressing the CEO, Chairman LaMarca said Mr. Balano needed to have a copy of the Code Book. The Chair then read for Mr. Balano Section 16.28.130.D relating to nonconforming structures. Some of this was open to interpretation, which was where the Board came in to discuss things, but it allowed expansions as long as the point of the structure closest to the wetlands was not increased. The Chair said he would have to say that was probably their most contentious article about wetlands because it was so strict in Kittery so, definitely, Mr. Balano would want to do his homework on that to figure out where he stood on how it should be. Mr. Balano said, in light of his newness, he would feel more comfortable abstaining from this particular vote. Chairman LaMarca said he could
absolutely do that if he wanted. Mr. Costa wanted to let Mr. Balano know that abstaining was a “no” vote. The Chair said that was right because an application needed four “yes” votes, an abstention really was a “no” vote. In light of the circumstances, Mr. Balano thought it was appropriate.
Ms. Brown, as secretary, read the application as follows: Move the application of Robert Reed, on behalf of Robert Goldman, requesting a Miscellaneous Appeal to the terms of Title 16, Section 12 of the Kittery Land Use and Development Code Zoning Ordinance be approved in order to construct a 6’x28’ porch entry at property located at 94 Goodwin Road, Map 53, Lot 2-1, Kittery Point, zoned Rural Conservation and within the Shoreland Zone. Construction shall be in accordance with a sketch submitted, dated and signed by Robert Reed and Michael LaMarca, Chairman. A motion was made by Mr. Kingsbury, seconded by Mr. Gardner. Chairman LaMarca said
Mr. Balano was abstaining and asked for a show of hands of all those in favor of granting the application.
A SHOW OF HANDS RESULTED IN A VOTE OF SIX IN FAVOR, ZERO OPPOSED, ONE ABSTENTION. MOTION PASSES 6/0/1, WITH MR. BALANO ABSTAINING.
Chairman LaMarca informed the applicant that any interested party with standing could appeal the decision of this Board within 45 days in the York County Superior Court and they would try to get Findings of Fact out within seven days of this hearing. The Chair also informed the applicant that this approval was not the granting of a building permit, that he would still need to see the CEO for that, it merely gave the CEO authority to issue said permit.
Chairman LaMarca said they would now officially go on to the second appeal, which was the dormer expansion, and asked Mr. Reed if he had any other information. Mr. Reed thought that the paragraph under 16.28.130.D was an important paragraph and if Mr. Balano was going to abstain from the second case, it might help him to hear it read and Ms. Brown suggested he read it into the record.
Mr. Reed read as follows:
D. Nonconforming Structures Within Areas Regulated by Shoreland Zoning.
1. Expansions. A nonconforming structure may be added to or expanded after obtaining a permit from the same permitting authority as that for a new structure, if such addition or expansion does not extend or increase the nonconformity of the structure any closer than the existing closest distance of each of the shoreland structure’s building facades to the normal high-water line of a water body, tributary stream or upland edge of a wetland it fronts, subject to the following limitations:
Mr. Reed noted that it then went on with the restrictions and, in his opinion, this proposal met those criteria.
Concerning this application, Chairman LaMarca asked if there was anyone present who would like to speak in favor of, opposed to, or about it in any way. Hearing no response, the Chair asked for the CEO’s report.
CEO Ross said this was a conforming lot with a nonconforming structure located in the Rural Conservation and Shoreland Zones. Mr. Reed was proposing to demolish a portion of an existing roofed porch and to reconstruct that with an additional 77 square feet of living space for a portion of the dormer above. Because the dormer was part of a structure that is greater than 500 square feet in size, it required a 100-foot setback from the wetland so, although he was going no closer than what was existing, it was demolishing what was already there and constructing and adding more.
Mr. Costa questioned the 500 square foot restriction and the CEO apologized, saying the 500 square foot restriction related to the Shoreland Zone and what they were looking at was Table 16.12, which was the wetland setbacks, not the shore land. Chairman LaMarca then confirmed that the concern was strictly the distance to the wetland and asked if the Board had any questions for
Mr. Reed.
Mr. Kingsbury said he wanted to confirm that Mr. Reed’s plan was to remove the circular window on the East front and put in a new gable, facing it from the left end to the front; Mr. Reed said that was correct and indicated the section, porch post and gable that would be the new addition and which were outside the 100-foot setback. Responding to questions about the dormer, Mr. Reed explained that the dormer sat back about two and a half feet and CEO Ross noted that the dormer was being demolished and rebuilt. Mr. Kingsbury asked if the proposed new dormer extended any closer to the wetland than the existing dormer and Mr. Reed replied that it did not extend any closer to the wetland, it headed toward the ocean side.
Ms. Brown commented again that bringing in the pictures was very helpful, especially with the ocean side; Mr. Reed said the only expansion was the new dormer, which would slide forward four and a half feet but not toward the wetland; the porch stayed the same. Ms. Brown’s other concern was what was underneath, asking Mr. Reed to confirm there would be absolutely no expansion to what was already there, including the deck. Mr. Reed said the eight-foot poured concrete wall was the existing porch foundation, which stayed the same, there was no change in the footprint and the deck stayed eight feet and wrapped around. Mr. Costa said there was no issue to that side anyway. Ms. Brown explained that she wanted to make sure nothing under the deck would
come out farther and pointed out to Mr. Balano how the concern was where it came out in relation to the wetland setback since the shore land setback was okay. Mr. Brown further explained that she would probably vote against this if he had wanted to expand the deck even by an inch but, in this case, she felt everything in the envelope was already there and particularly because they were not expanding at all on that side, she didn’t have a problem with it.
Mr. Gardner asked Mr. Reed if he had already started construction on the dormer and
Mr. Reed replied he had not.
Mr. Balano said, contrasting this case with the last one where he was actually filling in some area for the porch, in this case, there was no change to the footprint at all, simply sending a dormer out one side. Chairman LaMarca said the reason they had to come before the Board was because it was closer than 100 feet. Ms. Brown pointed out that if the dormer had not been there and he wanted to expand by putting a dormer in, which was not out of the question, people had asked for a lot more than that and been approved -- but because the dormer was already there, it created, for her, a “filling in” and what was really being expanded was filling in the dormer to make up with the addition that had already been approved and was legal. Were the dormer
not there and the request was to create a dormer, she would have had a problem with that, however, there may be people that wouldn’t have a problem with it so, again, it was a question of interpretation.
Ms. Brown, as secretary, read the application as follows: Move the application of Robert Reed, on behalf of Robert Goldman, requesting a Miscellaneous Appeal to the terms of Title 16, Section 12 of the Kittery Land Use and Development Code Zoning Ordinance be approved in order to construct a 4’6” x 17’ expansion of a second floor dormer at property located at 94 Goodwin Road,
Map 53, Lot 2-1, Kittery Point, zoned Rural Conservation and within the Shoreland Zone. Construction shall be in accordance with a sketch submitted, dated and signed by Robert Reed and Michael LaMarca, Chairman. A motion was made by Mr. Gardner, seconded by Ms. Brown. Chairman LaMarca asked for a show of hands of those in favor of granting the application.
A SHOW OF HANDS RESULTED IN A UNANIMOUS VOTE, SEVEN IN FAVOR, ZERO OPPOSED. MOTION PASSES 7/0.
Chairman LaMarca wanted the record to show that in building this new dormer, the roof it was attached to would be removed and then replaced. The Chair then informed the applicant that any interested party with standing could appeal the decision of this Board within 45 days in the York County Superior Court and they would try to get Findings of Fact out within seven days of this hearing. The Chair also informed the applicant that this approval was not the granting of a building permit, that he would still need to see the CEO for that, it merely gave the CEO authority to issue said permit.
3. Continuance: Bayonne Construction Company, Inc. requesting a Miscellaneous Appeal to the terms of Title 16, Section 12, Minimum Setbacks from Wetlands (Page 256-1) of the Kittery Land Use and Development Code Zoning Ordinance in order to remove an existing single wide mobile home, oil tank and septic system and build a new 28’x46’ raised ranch with new septic system at property located at 11 Old Cutts Road, Map 60, Lot 20, Kittery, zoned Rural Residential.
Jim Shannon came to the podium, saying he was the President of Bayonne Construction Company and that also in the audience was the property owner, Karen Burbank, as well as her mother-in-law and sister-in-law. As indicated, the nature of the appeal was requesting relief from the same Table 16.12 to remove the existing home, which was nonconforming, and replace it with a new home. It had become clear that there was nothing they could do with a mobile home on that property, so their proposal was to remove that and have a traditional house. Mr. Shannon said he would be referring to the 3/9 revised plan, which showed a 28x50 home. Comparing and contrasting the plan with their first, at the Board’s request, they rotated the axis 90 degrees in an
effort to have the home come further away from the existing wetlands. The wetlands shown on the plan were on the property of Irving and Cora Livingstone, so the lot lines setback, as shown on the plan, were 20 feet and the original building’s setbacks. As they could see, the existing house was 11 feet from the property line and approximately 34 feet from the wetlands. The new proposal pulled the house further back to a setback of 63.7 feet from the front door, which was 23 feet on the Livingstones’ and 34.6 on the Burbanks’ property so they were pulling it back an additional 20 feet; there was no change in regard to setbacks from the highway. Their original plan conformed to all the setbacks except the wetlands, this plan did not conform to the frontage setback, at the suggestion of the Board to look at something as a “no closer than” so the existing structure was 3.5 feet from the front lot line and when they rotated the
proposed house on the axis, it set at 12.8 feet, so they were no closer than the existing nonconformity on the frontage.
Mr. Shannon said the Board asked them to look at two different options, one was, as shown, the other would be pulling the house further down Old Cutts Road with the septic system closer to the wetlands. In discussing that with the septic designer and the folks at Easterly Survey, it was strongly suggested it wasn’t a good thing to even consider because that could be asking for problems and if the intent was to protect the wetlands, they were unanimous in saying keep the setback as shown and, based on that advice, that was what they did.
One of the concerns with the first plan was the extent of the driveway and because of the rotation, instead of having the driveway in the front of the house, he would have it on the gable facing Old Cutts Road, dramatically cutting down the driveway. Their original plan listed an impervious surface, he believed, of about 15 percent and this would cut it down to less than 10 percent.
Mr. Shannon wanted to point out that their first proposal was for a 28’x46’ house, which was as long a house as he could get within the existing setbacks but when they rotated the house, he had a little bit more leeway so the desire was for 50’ versus the 46’ because that four feet had a dramatic affect on the layout of the house. That enlargement would have nothing to do with the wetlands because, again, they were pulling everything further back so, to the extent he could verbally modify the application to a home that would be 1,450’ as opposed to 1,344’, making the lot coverage 11.25 plus or minus as opposed to 10.4. Some other limiting factors for pulling the house further back towards their proposed septic system were regulations about how far the tank had to be from the
house and the house from the field, so that was as far away from the wetlands as he could get that house. Mr. Shannon said that the intent, obviously, was to protect the wetlands and so the proposal would be to remove the existing home, the existing septic, which was closer to the wetlands than their proposal, the oil tank and increasing the buffer for the wetlands by pulling the home back as proposed and they would appreciate their plan being approved tonight.
Chairman LaMarca asked if there was anyone present who would like to speak in favor of, opposed to, or about the application in any way. Hearing no response, the Chair asked for the CEO’s report.
CEO Ross said this was a nonconforming lot with a nonconforming structure and nonconforming use of a mobile home located in the Rural Residential Zone. Bayonne Construction is proposing to demolish the existing mobile home and construct a new single-family 28’x50’ home. The Rural Residential Zone required 40 feet property line setback for new houses. The proposed home was 12.8 feet, where the mobile home was 3.5 from the front property line. Table 16.12 required a minimum setback of 100 feet from wetlands greater than one acre in size. The new house at the proposed site would be 63.7 feet from the wetland.
Chairman LaMarca told Mr. Shannon he had done a nice job in listening and asked the members of the Board to review 16.28.110.F, which indicated that the Board was allowed to let a nonconforming use stay a nonconforming use, as long as the proposed use had no greater adverse impact on any water body, wetland or adjacent properties or resources. The Chair said, initially, he read that incorrectly, thinking it was referring to a change from a nonconforming to a conforming use, but even so, the rule said it could be done in this area and, personally, he thought what they were doing here was greatly reducing the impact on the wetland.
Mr. Balano asked if there was a specific section of the Ordinance that covered this particular situation and the Chair said, no, it was less restrictive because they were not in the Shoreland Zone, but there were several things in play here. The Chair then asked the CEO to confirm the reason this application had to come before the Board, was it because of the wetland? CEO Ross replied, yes, the wetland and also because of the front property line.
Ms. Brown wanted to commend Mr. Shannon, she really appreciated the fact he listened to what they said and was really impressed at the effort he made to come into compliance as much possible and still have a home that would be profitable to him and pleasant for these people to live in; she was really pleased with that and had no opposition to what they wanted to do.
Mr. Pinkham confirmed the information Mr. Shannon supplied regarding the septic system, saying, after the first time they were there, he had made telephone inquiries and heard the same input. Regarding impervious surfaces, he also learned that if there were any questions, they could just leave a buffer on the edge of mowed lawn.
Mr. Balano noted that in two instances this was becoming less nonconforming than it was so it was a very positive move.
Mr. Gardner asked Mr. Shannon if he considered that size home as overbuilding in the neighborhood and Mr. Shannon replied, considering the colonial down the street, no.
Ms. Brown, as secretary, read the application as follows: Move the application of Bayonne Construction Company, Inc. requesting a Miscellaneous Appeal to the terms of Title 16, Section 12, Minimum Setbacks from Wetlands of the Kittery Land Use and Development Code Zoning Ordinance be approved in order to remove an existing single wide mobile home, oil tank and septic system and build a new 28’x50’ raised ranch with new septic system at property located at 11 Old Cutts Road,
Kittery, zoned Rural Residential. Construction shall be in accordance with a sketch submitted, dated and signed by Jim Shannon and Michael LaMarca, Chairman. A motion was made by Mr. Pinkham, seconded by Mr. Costa. Chairman LaMarca asked for a show of hands of those who were in favor of the application.
A SHOW OF HANDS RESULTED IN A UNANIMOUS VOTE, SEVEN IN FAVOR, ZERO OPPOSED. MOTION PASSES 7/0.
Chairman LaMarca informed the applicant that any interested party with standing could appeal the decision of this Board within 45 days in the York County Superior Court and they would try to get Findings of Fact out within seven days of this hearing. The Chair also informed the applicant that this approval was not the granting of a building permit, that he would still need to see the CEO for that, it merely gave the CEO authority to issue said permit.
The Chair then called for a couple of minute recess.
Recess: 8:07 p.m.
Meeting back to order: 8:10 p.m.
4. Tamara Turcotte and Brian Bourque requesting a Special Exception to the Kittery Land Use and Development Code Zoning Ordinance to permit a major home occupation at property located at 326 Haley Road, Map 40, Lot 3B, Kittery Point, zoned Rural Residential.
Chairman LaMarca told Mr. Bourque he could rest of what had been submitted or make a presentation. Mr. Bourque came to the podium and explained they were from Poland Spring and wanted to move to Kittery. They found a piece of property they thought would be a great spot for an antique shop and home; they would occupy the home and just the two of them would work the shop, which would be by appointment only.
Chairman LaMarca asked if there was anyone present who would like to speak in favor of, opposed to or about the application in any way. Hearing no response, the Chair asked for the CEO’s report.
CEO Ross said this was a conforming lot within the Rural Residential Zone. Mr. Bourque and Ms. Turcotte were proposing a major home occupation, which was allowed only by Special Exception and ZBA approval. They proposed to turn 672 square feet of the barn into an antique shop and 520 square feet of the basement into a repair facility for antiques. The CEO suggested the Board might wish to go through the major home occupation criteria.
Chairman LaMarca referred members of the Board to 16.12.040.C, which allowed Special Exceptions. At the Town Attorney’s suggestion that any Special Exception coming before the Board should be discussed in relation to each of the criteria, the Chair said they would first look at 16.32.1180, which indicated the standards for a major home occupation, that he would read through the list and if anyone had a question or objection, they should raise it at the point of reading.
A. Compliance:
Applicant must be resident of the residence or dwelling for the home occupation to occur. An applicant who is not the owner of the property but is residing on the premises must submit written permission of the property owner for the proposed occupation.
Ms. Brown wanted to make sure there would be no “manager” for the business and that they would be running their business out of their own home. Mr. Bourque and Ms. Turcotte assured the Board they had a Purchase and Sales Agreement in hand and would be living there.
As an accessory use, the home occupation must be subordinate to the principal use. Measures determining whether a proposed activity is an accessory use include, but are not limited to, percentage of total amount of square footage attributed to use in relation to residential use. Other factors include, but are not limited to, the projected activity level in relation to the residential use and whether the proposed use is a traditional accessory use in the community.
Ms. Brown said she had questions concerning that, asking the CEO what percentage of the full living space was it when the 672 and 520 were added together and if, in fact, that mattered? CEO Ross said she thought 50/50 would be acceptable for a major home occupation but the focus might more be on the activity level, whether the home occupation use would become the primary use and residential secondary. Ms. Brown said it could never really become primary, even if the business became quite successful; the residence always had to take priority. Mr. Balano said there seemed to be two aspects, space and time, and according to the application, it seemed as though the time would be limited, the business was by appointment only. Chairman LaMarca asked the applicants about
the basement, if it would be devoted solely to the repair business or if they would have their personal items there as well and Mr. Bourque said there were three sections of the basement, only one of which would be for the repair shop. CEO Ross submitted figures of 1,600 square feet, which was purely for residential use and 672 square feet of the basement would be used along with the garage would be for the business, creating a total of 1,600 square feet of living space versus 1,100 square feet for business.
B. Number of Workers:
No more than five persons, including residents at any one time.
Mr. Bourque said it was just the two of them.
C. Prohibited Use:
The following uses are categorically prohibited: motor vehicle repair, motor vehicle sales or rental, commercial parking, commercial outdoor storage, junk yard and auto salvage.
Mr. Gardner questioned the type of antiques and the applicants replied they were all different, furniture, glassware, clothes and assured the Chair there were no antique automobiles.
D. Business Hours:
Business activities involving clients or customers on the premises or vehicular traffic to and from the premises must not be conducted between the hours of 7:00 p.m. and 7:00 a.m., except for bed and breakfast, day care facility or functionally water-dependent use. This limitation may be modified by the ZBA, providing it satisfies the intent of this section.
The applicants assured the Board this would not be a problem.
E. Nuisances:
Any excessive noise, dust, smoke, vibrations, glare, direct lighting, objectionable fumes, traffic or electrical interference detected at the property boundary must not be greater in duration or intensity than that expected in the surrounding residential neighborhood.
Chairman LaMarca asked the applicants if they planned on any modifications, signs, lights or light posts. The applicants said they would like to have a sign at the end of their driveway but if that was a problem, they also discussed putting a flat sign on the outside of their garage. The Chair informed the applicants that the Board had nothing to do with the sign, per se, since signs had their own set of regulations and the CEO could inform them about that. CEO Ross said signs were limited to no greater than eight square feet. The Chair asked if they were planning to light the sign and the applicants replied, no, they did not plan on the business being open in the evenings. A decision was made to include a restriction on any sign being lighted.
F. Parking:
A submitted plan must provide safe and sufficient off-street parking to meet the needs of the business to prevent parking overflow off the site. Any reoccurring observed parking overflow is a violation of these standards. The creation of more than four off-street parking spaces must be located, designed, screened or landscaped to minimize adverse impact on abutting property.
Chairman LaMarca asked the applicants what their plans for parking were and they replied there were already about eight spots there, which included enough space for people to turn around and they were never planning on having eight cars at one time. The Chair said they had to be careful here because, although the spaces may already be there, they were going to create more than four off-street parking spaces, so it needed to be located, designed, screened and landscaped and he thought the Board needed to see them; the Chair asked Mr. Bourque to do a quick drawing to show where those eight spaces were going to be. CEO Ross noted that the driveway was an existing one. The Chair asked members of the Board if they felt that since the driveway was already there and they were not creating
anything; the applicants said they didn’t want to put any more parking in. Ms. Brown said they needed to use what was there and the Chair asked for Mr. Gardner’s opinion. Mr. Gardner said he was uncertain he would vote for it because of his concern about commerce creeping down the road. In regards to the driveway itself, the Chair asked Mr. Kingsbury, since they were not creating more driveway, if they used what was there, did he view it as a new creation or just using what was there? Mr. Kingsbury said he had no problem with the driveway. Upon further Board agreement, the Chair felt they didn’t need to go further as long as the applicants realized they could not create any more parking.
G. Outdoor Storage:
All outdoor storage of equipment, vehicles or items associated with the home occupation must be screened from view of abutting properties and all streets.
Chairman LaMarca asked the applicants if they had outdoor storage of any type and they replied, no.
H. Business Conduct:
All business activities on the site must take place within an enclosed building or be screened from view of the abutting properties and from all publicly maintained streets except for outdoor recreational uses, agricultural uses or functional water dependent uses. This may be modified by the ZBA provided the proposal met the intent.
The Chair asked if everything was inside and the applicants said that was correct.
I. Refuse and Recyclables:
All refuse and recyclables must be stored in containers that are screened from view of the abutting properties and from streets. No emptying of dumpsters is allowed before 8:00 a.m. or after 7:00 p.m.
Mr. Bourque said there would be no dumpster.
J. Traffic:
The home occupation must not result in creating or significantly exacerbating a traffic hazard or create an objectionable increase in vehicle traffic, considering the type, time and the amount of vehicle traffic generated, the design capacity of the roads to the site, and normal traffic for the neighborhood.
Chairman LaMarca confirmed with the applicants that they had said their business would be by appointment only. Ms. Turcotte said it was usually one person at a time and because it was by appointment only, there would not be traffic driving down because they thought it was an antique shop.
K. Retail Sales:
Retail sales related to the following: customers do not come to the premises, such as mail order; sales of products raised or grown on the premises; sales of seafood; items customarily incidental and subordinate to the home retail occupation, i.e., shampoo, hairbrushes; sales by appointment only for which any signage identifying the business states by appointment only.
The Chair confirmed that the applicants understood that they could have retail sales but the sign had to say by appointment only. Ms. Brown commented that she shared Mr. Gardner’s concern about commerce so this was really an important piece and was the delineating line; were the applicants prepared to turn away potential customers during the tourist season? Ms. Turcotte said their present business was conducted out of their home with very limited hours and, even without the rule, 90 percent of their customers were by appointment only. They were not planning on being open five days a week and, actually, repairs, etc. in the basement was the thing that was very important to them. Ms. Turcotte said if someone came and knocked on their door, they would be prepared to turn them
away because they had every intention of following the rules.
L. Health and Safety:
The proposed use must not create a health or safety hazard.
M. Neighborhood Compatibility:
The proposed use must be compatible with the surrounding neighborhood. In reaching this determination, the following factors are to be considered: nature of the property; physical characteristics of the neighborhood, including the amount of nonresidential activity; hours of operation; intensity of activity; potential to degrade the quality of life for residents of the surrounding neighborhoods; cumulative impact of existing and other accessory uses both on the premises and the surrounding neighborhood.
Chairman LaMarca said he knew there was one other business-type place on that road and, based on what they had discussed, he had no problem with any of these.
N. Large Lots:
When a 75-foot buffer is provided between all business activities and contiguous properties and the buffer is sufficiently vegetated to provide screening so as to obscure the home occupation activities from the abutting property.
The Chair confirmed that everything was inside and out of view. Mr. Kingsbury asked about homes next to them and Ms. Turcotte said there was a home on each side of them. Ms. Brown asked about this restriction, was it saying it was necessary to have a 75-foot buffer? CEO Ross said it was saying if you had that, then other restrictions could be relaxed.
O. Annual Renewal:
Upon approval of the major home occupation by the ZBA, the CEO is authorized to issue a Certificate of Occupancy Permit for not more than a one year time period. Such Permit may be renewed annually by application to the CEO. Operation of business with an expired Certificate of Occupancy Permit is a violation of this Title. An annual Permit must be renewed only if the CEO finds the home occupation complies with all applicable standards of this Title and any conditions required by the ZBA’s original approval.
Ms. Brown pointed out a past difficult situation the Board had to deal with concerning a business in a residential neighborhood where people had promised to abide by set rules and did not, resulting in the neighborhood appealing the ZBA’s approval, and that was why they were being so specific with stipulations. Ms. Turcotte said she understood; they would not want someone coming into their neighborhood saying one thing and doing another.
Chairman LaMarca confirmed that the Board agreed this application qualified as an approvable major home occupation and turned their attention to Table 16.24.060, Basis for Decision. The Chair proceeded to read, verbatim, the said Table.
During the Chair’s reading, Mr. Balano wanted to clarify if there were other antique major home uses and CEO Ross said not in that particular zone and probably the closest thing to it was the Haley Road Art Gallery, which had public hours but retail sales by appointment. Mr. Balano said in terms of suitability, this was similar. Mr. Gardner commented that it set up a neighborhood in transition, when you started pulling in home occupations, they led to other things, so home occupations were the initial point of a neighborhood in transition. In terms of obnoxious odors,
Mr. Balano questioned the use of sanders, paint and varnish. Mr. Bourque said he had a hand sander but, in fact, he didn’t strip furniture or refinish it.
After completing the reading of 16.24.060, Chairman LaMarca said they had six more Special Exceptions. These Exceptions included front, side and rear yards in excess of minimum requirements; modification of exterior features that border other structures; limitations on size; regulation of design of access drive, sidewalks, etc.; off-street parking and loading spaces in excess of minimum requirements; restrictions on hours of operation.
Chairman LaMarca asked if members of the Board had any other questions. Mr. Kingsbury noted he was going to vote against it because of retail sales but saw they were allowed under Home Occupation and reiterated the restriction on a lighted sign. Ms. Brown said she was going to add that they use the existing driveway and not be allowed to create additional parking; the Chair had no problem with that.
Mr. Gardner had a technical question: Under 16.22.1180.A, an applicant must be dwelling in the home and the applicants were not residents. Chairman LaMarca said that would be a good stipulation and he fully agreed with that. The applicants did have a Purchase and Sales Agreement and he would have to say a stipulation would be if this Special Exception was granted, it was granted to them when they owned the property; once they moved in, this would take effect. Mr. Gardner said he didn’t see how the use was in harmony to the neighborhood according to 16.24.060.A.4.
Mr. Costa noted that Kittery Optometry was two houses down and Mr. Gardner said that gave rise to his concern about commerce creeping down the street.
Ms. Brown said she understood what Mr. Gardner was saying but wasn’t ready to vote against this project because they met all the criteria and they were not yet at crisis mode. Mr. Pinkham noted the Planning Board made such decisions and, as long as the Code said the application met all the criteria, they couldn’t vote against it because of what might happen two years from now. Mr. Gardner felt that part of their job was to analyze its impact on the future. Chairman LaMarca disagreed, saying they could only approve or disapprove based on the Code; they could raise objections but had no legal standing to say no to a project that met all the criteria.
Mr. Balano noted that major home occupations tended to come and go with the owners and did not necessarily have a cumulative affect on a neighborhood. Ms. Brown thought that was a good point and noted that the applicants had to come back every year; this Special Exception was only applicable to them and their business so if someone else wanted to buy their home and do exactly what they were doing, they would also have to come before the Board.
Ms. Brown, as secretary, read the application as follows: Move the application of Tamara Turcotte and Brian Bourque requesting a Special Exception to the Kittery Land Use and Development Code Zoning Ordinance be approved to permit a major home occupation to turn 672 square feet of garage/barn space into a retail antique shop and 520 square feet of basement into a repair shop at property located at 326 Haley Road, Kittery Point, zoned Rural Residential, with the following conditions:
a) that they use the existing driveway and are not allowed to create any new parking other than what is already there;
b) the sign shall not be lighted, nor shall there be any additional lighting allowed highlighting the business;
c) retail sales shall be by appointment only;
d) because this application is based upon a Purchase and Sales Agreement, this Special Exception takes effect when the applicants take residence.
Approval shall be in accordance with a sketch submitted, dated and signed by Tamara Turcotte and Brian Bourque and Michael LaMarca, Chairman. A motion was made by Mr. Costa, seconded by
Mr. Pinkham. Chairman LaMarca asked for a show of hands of everyone who was in favor of granting this Special Exception.
A SHOW OF HANDS RESULTED IN THE FOLLOWING VOTE: SIX IN FAVOR, ONE OPPOSED, WITH MR. GARDNER OPPOSED. MOTION PASSES 6/1.
Chairman LaMarca informed the applicants that any interested party with standing could appeal the decision of this Board within 45 days in the York County Superior Court and they would try to get Findings of Fact out within seven days of this hearing. The Chair also informed the applicants that this approval was not the granting of a building permit, that he would still need to see the CEO for that, it merely gave the CEO authority to issue said permit.
FINDINGS OF FACT
Application #1 – Robert Reed, on behalf of Robert Goldman
1. This is a conforming lot with a nonconforming building.
2. The applicant was requesting approval to build a 6’x28’ porch.
3. The house is located 52 feet from the wetland; the new porch would be 61 feet from the wetland.
4. The project would basically entail filling in between two wings of the house.
CONCLUSIONS
1. Per 16.28.130, the Board found that the proposed construction would be no closer to the wetland than the existing house and approved the application by a vote of six in favor, zero opposed and one abstention.
FINDINGS OF FACT
Application #2 – Robert Reed, on behalf of Robert Goldman
1. This is a conforming lot with a nonconforming building.
2. The applicant wanted to demolish and replace a porch roof on one side of the house and construct a 4’6”x17” expanded dormer.
CONCLUSIONS
1. Per 16.28.130, the Board found that the proposed construction would be no closer to the wetland than what presently existed and unanimously approved the application by a vote of seven in favor, zero opposed.
FINDINGS OF FACT
Application #3 – Bayonne Construction Company, Inc.
1. This is a nonconforming lot with a nonconforming structure and nonconforming use.
2. The applicant wanted to remove the mobile home, replacing it with a new traditional home.
3. The new home would be moved back from the front setback, which was currently approximately three feet, to 12.5 feet and moved back from the wetlands, currently approximately 11 feet, to approximately 63 feet.
4. The new home would be 28’ x 50’ and bring the lot into a conforming use.
CONCLUSIONS
1. Per 16.28.130, the Board found that the new construction would be no closer to the wetland or front setback than what presently existed and unanimously approved the application by a vote of seven in favor, zero opposed.
FINDINGS OF FACT
Application #4 – Tamara Turcotte and Brian Bourque
1. The applicants were seeking a Special Exception in the Rural Residential Zone for a major home occupation.
CONCLUSIONS
1. After lengthy discussion and review of 16.32.1180 and 16.24.060 (Bases for Consideration), the Board determined this was a proper major home occupation, which met all criteria, and approved the application by a vote of six in favor, one opposed, Mr. Gardner in opposition, with the following conditions:
a) There shall be no expansion of the existing driveway in order to create new parking;
b) One unlighted sign will be allowed with no additional lighting added to highlight the business;
c) Retail sales shall be by appointment only; and
d) This approval is based upon a Purchase and Sales Agreement; the granting of this Special Exception shall take effect when applicants have taken possession of and are living at
326 Haley Road.
Chairman LaMarca said that every year the Board had to vote for a Chairman and he had just gone over a year on the 24th. He was willing to stay on as Chairman, but if someone else wanted to do it, please speak up. Mr. Kingsbury nominated Michael LaMarca for Chairman, seconded by Mr. Pinkham.
A SHOW OF HANDS RESULTED IN THE FOLLOWING VOTE: SIX IN FAVOR, ONE ABSTENTION, CHAIRMAN LAMARCA ABSTAINING. NOMINATION PASSES 6/0/1.
ADJOURNMENT
Mr. Kingsbury moved to adjourn, seconded by Mr. Costa, with all in favor.
MEETING ADJOURNED 9:20 P.M.
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