TOWN OF KITTERY
ZONING BOARD OF APPEALS
December 11, 2007 Council Chambers
APPROVED
CALL TO ORDER:
Chairman Gardner called the meeting to order at 7:05 p.m.
BOARD MEMBERS PRESENT:
Vern Gardner, Chairman, Thomas Battcock-Emerson, Sarah Brown, Bob Kaszynski, Herb Kingsbury, Niles Pinkham
ALSO PRESENT:
CEO Heather Ross, Recorder Lisa Goms
Chairman Gardner introduced the members of the Board, outlined the hearing
procedure and led those present in the Pledge of Allegiance. The Chair then read the Notice of Hearings.
PUBLIC HEARINGS:
1. Irving Oil Corporation for James Howell requesting an Administrative Appeal to
overturn the decision of the Code Enforcement Officer and allow Irving Oil Corporation to relocate the existing CAT scale sign or similar replacement sign on the property as a lawfully nonconforming sign. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the Commercial Zone.
2. Irving Oil Corporation for James Howell requesting a Miscellaneous Appeal to
the terms of Title 16, Section 32, Subsection 620 (Page 338.3) of the Kittery Land Use and Development Code Zoning Ordinance in order to approve relocation on the property of the existing CAT scale sign or a similar replacement as a lawfully nonconforming sign. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the Commercial Zone.
3. Irving Oil Corporation for James Howell requesting an Administrative Appeal to
overturn the decision of the Code Enforcement Officer and allow Irving Oil to replace the existing fuel canopy and fuel pump signage as lawfully nonconforming signage. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the Commercial Zone.
4. Irving Oil Corporation for James Howell requesting a Miscellaneous Appeal to
the terms of Title 16, Section 32, Subsection 580(I) (Page 336) and Title 16, Section 32, Subsection 595(B)(2)(A) (Page 338) of the Kittery Land Use and Development Code Zoning Ordinance in order to allow replacement of the existing fuel canopy and fuel pump signage as lawfully nonconforming signage and as a variation in nonconformance. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the Commercial Zone.
5. P&S Associates, LLC requesting an Administrative Appeal to overturn the
decision of the Code Enforcement Officer to construct a single-family dwelling and to construct a single-family dwelling with setback no less than setback of existing dwelling to be demolished. Located at 79 Pepperrell Road, Map 26, Lot 22 in the Kittery Point Village Zone.
6. P&S Associates, LLC requesting a Miscellaneous Appeal to the terms of Title 16,
Section 12, Subsection 055(E)(2) (Page 239-3) of the Kittery Land Use and Development Code Zoning Ordinance in order to raze the existing 3-unit dwelling and construct a new single-family home. Located at 79 Pepperrell Road, Map 26, Lot 22 in the Kittery Point Village Zone.
1. Irving Oil Corporation for James Howell requesting an Administrative Appeal to
overturn the decision of the Code Enforcement Officer and allow Irving Oil Corporation to relocate the existing CAT scale sign or similar replacement sign on the property as a lawfully nonconforming sign. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the Commercial Zone.
Chairman Gardner recognized James Katsiaficas, Esq., for Irving Oil Corp. Mr. Katsiaficas presented the project to the Board specifically in regards to the issue of the CAT scale sign. Mr. Katsiaficas said: We are asking for relief as an Administrative Appeal and also as a Miscellaneous Appeal. As an Administrative Appeal, we are asking the Board to reverse the decision of the CEO because there are three grounds for allowing this sign. First is that it did not require a sign permit all along. It was approved in 1995 along with the building permit as though it was part of the equipment being installed….also it is a directional sign. What we are proposing is to move the same sign. If in moving the sign it gets messed up, we would replace it with exactly the same size sign, it would be no
larger.
Chairman Gardner made the suggestion to combine the appeals. Mr. Katsiaficas agreed that that would be alright if it made it easier for the Board. Mr. Kingsbury commented that they should take them two and two. The Board agreed to combine appeals and take two together at a time.
Mr. Katsiaficas continued: We are asking that in the alternative, grant a Miscellaneous Appeal to carry the nonconformity and allow the sign to be moved…eventually replaced with nothing any larger than what is there now. For two reasons we believe it's a nonconformity…it could either be an Administrative Appeal that the Board could allow to remain or as a variation in nonconformity as a Miscellaneous Appeal. In either event, we would certainly agree to any conditions the Board wished to put on it… that it cannot be substantially altered and that it cannot be enlarged. We are seeking to have the same sign relocated on the site as shown on the plan.
Chairman Gardner 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 requested the CEO's report:
CEO Ross reported: This is a conforming lot with a nonconforming structure located in the Commercial Zone. Irving Oil has proposed to relocate an existing nonconforming CAT scale sign. 16.32.620 states "No person may erect, post, enlarge, relocate, replace or modify a sign except in conformance with a permit issued by the Code Enforcement Officer. Because the CAT scale type sign is not specific in the ordinance, the application was denied based on that.
Board Discussion
Ms. Brown questioned the size of the sign… could it be smaller, more conforming?
Mr. Kingsbury stated that he had no problem with sign, but his issue is with the code. If it is a directional sign, the Planning Board has the power to approve a change or increase and not the Zoning Board.
Mr. Katsiaficas stated that the sign needed to be specific size (1075 sq' in area), and that it is grandfathered.
After some deliberation and clarification, the Board then decided to look at the project as two separate issues.
Mr. Kingsbury entertained the motion that the applicant be allowed to move the existing sign to the new site continuing nonconforming use. In the event that something happens to the existing sign in the move, any new constructed sign should be no larger than existing sign.
Sarah Brown, as secretary, read the application as follows: Move the application of Irving Oil Corporation for James Howell requesting an Administrative Appeal to overturn the decision of the Code Enforcement Officer and allow Irving Oil Corporation to relocate the existing CAT scale sign or similar replacement sign on the property as a lawfully nonconforming sign. The sign shall be no larger than 107.5 sq' in area, which is 215 sq' in total. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the Commercial Zone. Construction shall be in accordance with the sketch submitted, dated and signed by James Katsiaficas and Vern Gardner, Chairman. Dimensions as noted on the plan. A motion to approve was made by Mr.
Kingsbury, and was seconded by Mr. Pinkham.
VOTE: As an Administrative Appeal. The Board voted unanimously 6/0 with all in favor. Motion passes. Appeal granted. (Kingsbury, yes; Brown, yes; Pinkham, yes; Emerson, yes; Kaszynski, yes; Chairman Gardner also voted in the affirmative)
Chairman Gardner informed the applicant that any interested party of standing had 45 days to appeal the decision of this Board at the York County Superior Court and they would try to get Findings of Fact out within seven to ten days of tonight's hearing.
Chairman Gardner further informed the applicant that this approval was not the granting of a Building Permit as he would still need to see the CEO for that, it merely gave the CEO authority to issue such Permit.
FINDINGS OF FACT
Application #1 - Irving Oil Corporation for James Howell
1. The applicant, Irving Oil Corporation, was looking to overturn the decision of the
Code Enforcement Officer to relocate the existing CAT scale sign or similar replacement sign on the property as a lawfully nonconforming sign.
2. The sign was pre-existing but did not comply with the ordinance.
3. The sign is nonconforming and located in the Commercial 3 Zone.
4. Applicant stated that the CAT Scale sign would be the same dimensions
as sketched on the plan and shall not exceed those dimensions.
CONCLUSION
1. The Board voted unanimously 6/0 to overturn the CEO's decision.
2. Applicant voluntarily withdrew Miscellaneous Appeal (Item #2) regarding the
CAT Scale sign.
A motion to approve Findings of Fact was made by Mr. Kingsbury, seconded by Ms. Brown.
2. Irving Oil Corporation for James Howell requesting a Miscellaneous Appeal to
the terms of Title 16, Section 32, Subsection 620 (Page 338.3) of the Kittery Land Use and Development Code Zoning Ordinance in order to approve relocation on the property of the existing CAT scale sign or a similar replacement as a lawfully nonconforming sign. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the Commercial Zone.
Applicant voluntarily withdrew the application for a Miscellaneous Appeal.
3. Irving Oil Corporation for James Howell requesting an Administrative Appeal to
overturn the decision of the Code Enforcement Officer and allow Irving Oil to replace the existing fuel canopy and fuel pump signage as lawfully nonconforming signage. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the Commercial Zone.
Chairman Gardner recognized James Katsiaficas, Esq.
Mr. Katsiaficas gave a detailed description of how the signs and canopies will be situated, the sizes of each sign and their purposes. Mr. Katsiaficas said: What we are asking for is for the Board to either look at it as a nonconformity that is continuing, or looking at it as a Miscellaneous Appeal where we are seeking a variation in that nonconformity. We should be able to continue a reasonable amount of signage. We are proposing almost 16 square feet less that what is there now. When you add up all the signage, there is 99 square feet out there now. We are asking for 83.3 square feet of signage total.
Chairman Gardner 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 requested the CEO's report:
CEO Ross reported: This is a conforming lot with nonconforming structures located within the Commercial 3 Zone. Irving Oil has proposed to replace its fuel canopy and fuel pump signs. Per Title 16.32.580I, all building-mounted signs must be located only on the building that contains the activities or businesses advertised, except that up to ten (10) percent of the allowed signage for building mounted signs in Section 16.32.595 may be allocated to signs mounted on fuel pumps and/or fuel pump canopies. The signs, as they currently exist, exceed this amount. The proposed signs, although no greater than the existing signs, would exceed ten (10) percent of the allowable fuel pump/fuel pump canopy signage.
Board Discussion
There was much deliberation regarding the code and the nonconformity and conformity of the building.
Mr. Kingsbury's concern was whether the Board had the authority to allow the signage.
Chairman Gardner said; we do have the right to modify and uphold. Under the Administrative Appeal we can uphold, deny or modify. I see this as a modification to that Administrative Appeal. Does anyone object to that? Ms. Brown said; I only worry about allowing a variation in the nonconformity…that is under Miscellaneous. If we want to look at it as a no closer than, I would go even further and say that it is a nonconformity that is getting less nonconforming.
Sarah Brown, as secretary, read the application as follows: Move the application of Irving Oil Corporation for James Howell requesting a Miscellaneous Appeal to the terms of Title 16, Section 32, Subsection 580(I) and Title 16, Section 32, Subsection 595(B)(2)(a) of the Kittery Land Use and Development Code Zoning Ordinance in order to allow replacement of the existing fuel canopy and fuel pump signage as lawfully nonconforming signage and as a variation in nonconformance. Adding the modification that Irving Oil has agreed to reduce the signage by 11.3 sq' at the southwest side of the gasoline canopy and thereby reducing the total square footage of signage to 72 sq'. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the
Commercial Zone. Construction shall be in accordance with the sketch submitted, dated and signed by James Katsiaficas and Vern Gardner, Chairman. A motion to approve was made by Mr. Pinkham and was seconded by Ms. Brown.
VOTE: The Board voted 5 in favor/1 opposed. Motion passes. Appeal granted. (Kingsbury, no; Brown, yes; Pinkham, yes; Emerson, yes; Kaszynski, yes; Chairman Gardner also voted in the affirmative)
Chairman Gardner informed the applicant that any interested party of standing had 45 days to appeal the decision of this Board at the York County Superior Court and they would try to get Findings of Fact out within seven to ten days of tonight's hearing.
Chairman Gardner further informed the applicant that this approval was not the granting of a Building Permit as he would still need to see the CEO for that, it merely gave the CEO authority to issue such Permit.
FINDINGS OF FACT
Application #3 - Irving Oil Corporation for James Howell
1. The applicant, Irving Oil Corporation, was looking overturn the decision of the
Code Enforcement Officer to replace the existing fuel canopy and fuel pump signage as lawfully nonconforming signage.
2. There was 99 square feet of nonconforming signage that existed and was modified through agreement, to 72 square feet. The 72 square feet would be the size of the remaining sign. Removing the southwest corner of the sign to become less nonconforming - 16.28.130 & 16.28.130(D)(2).
CONCLUSIONS
1. The ordinance requires 16' reducing scale of the building Board should grant
relief.
2. The Board voted 5/1 to overturn the CEO's decision. Appeal granted.
A motion to approve the Findings of Fact was made and seconded with all in favor.
4. Irving Oil Corporation for James Howell requesting a Miscellaneous Appeal to
the terms of Title 16, Section 32, Subsection 580(I) (Page 336) and Title 16, Section 32, Subsection 595(B)(2)(A) (Page 338) of the Kittery Land Use and Development Code Zoning Ordinance in order to allow replacement of the existing fuel canopy and fuel pump signage as lawfully nonconforming signage and as a variation in nonconformance. Located at 20 Ranger Drive, Kittery, Map 13, Lot 5-11, 18 Ranger Drive, Kittery, Map 13, Lot 5-12, and 103 U.S. Route 1 By-pass, Kittery, Map 13, Lot 9 in the Commercial Zone.
Applicant voluntarily withdrew the application for an Administrative Appeal.
5. P&S Associates, LLC requesting an Administrative Appeal to overturn the
decision of the Code Enforcement Officer to construct a single-family dwelling and to construct a single-family dwelling with setback no less than setback of existing dwelling to be demolished. Located at 79 Pepperrell Road, Map 26, Lot 22 in the Kittery Point Village Zone.
Chairman Gardner recognized Dean Bouffard, Esq, representing P&S Associates.
Mr. Bouffard approached the podium and stated; we were last before the Board in October at which time we were requesting a Miscellaneous and Administrative Appeals to the CEO's decision to not allow the demolition of the existing building on the lot and the construction of a 2-unit residential dwelling in its place. The Miscellaneous Appeal was denied by the Board and we withdrew the Administrative Appeal. In denying our appeal, the Board concluded that one new dwelling unit could be constructed on the lot. Tonight we are requesting the approval of the Board for the construction of a single-family dwelling on the lot and the demolition of the 3-unit structure. Mr. Bouffard gave a description of the existing 3-unit dwelling and the need for substantial structure and foundation repair it would entail. Mr. Bouffard continued;
as it stands today, this is a nonconforming lot with a nonconforming use. We do propose to replace the existing nonconforming use by demolishing that 3-unit structure and replacing it with a single-family residential dwelling. Mr. Befound referenced several ordinances (16.28.020, 16.28.100) in his detail explanation of the conformity of the property and existing structure. The policy of zoning is to abolish nonconforming uses as swiftly as justice will permit. My proposal, I think, does that, I think it replaces the existing 3-unit structure which is nonconforming as to use, with a conforming single-family residence. The essence of this argument is that the change from a nonconforming use of a nonconforming lot to a conforming use of a nonconforming lot is authorized by the Zoning Ordinance, provided the new use is no more nonconforming than the existing use that is being abandoned. The Administrative Appeal of the CEO's denial of a building
permit for the demolition of the existing 3-unit nonconforming use and the construction of a conforming single-family dwelling should be granted and the decision reversed. The side setbacks on the driveway side of the property should not be an issue under this analysis so long as the building to be constructed is no closer to the abutting property or the driveway as the existing building that it replaces.
Chairman Gardner asked if there was anyone present who would like to speak in favor, opposed to, or about the application in anyway.
Chairman Gardner recognized Allan Shephard, Esq., to speak about the application.
Mr. Shephard representing abutters, Sam Reid and Fergus Reid and stated; I would like to hear from the CEO, there may not be much more I need to say beyond what the CEO did…I'm not exactly sure I understand the nature of the appeal because the applicant was seeking to not have this classified as a corner lot and the CEO has some pretty good arguments that the corner lot provision applies. I also do not know how the Administrative Appeal part would work so I will listen and see how it goes. This is a nonconforming lot, not a nonconforming building. Looking at the ordinance I don't see any that there is anything that the Zoning Board could do to "bless" what I think the applicant is asking for and that is since we are reducing one aspect of the nonconformity, we should be allowed to do things we are
otherwise not allowed to do. Maybe I am confused with that, but again, I will listen to better understand it. However, I don't see any provision in the ordinance that allows a nonconforming lot liberty to come back to the Board and ask for some kind of blessing.
Chairman Gardner asked if there was anyone else who would like to speak about the application. The Chair recognized Debbie Driscoll, representing abutter.
Ms. Driscoll had concerns with the previous proposal. Some of you heard about my concerns with the previous proposal, I would also like to ask if I could reserve speaking until the CEO is heard.
CEO Ross reported: This is nonconforming lot with nonconforming structure located in the Kittery Point Village Zone. Mr. Patten is proposing to demolish an existing 3-unit family structure and construct a single-family dwelling. The property front has both local road and right-of-way. The definition (16.08.020) for a Corner Lot is as follows:
1. Such corner lots, located at the intersection of two streets,
shall be deemed to have a side rather than a front yard between the principal building and the side street. Such side yard shall not be less than the front yard requirements of uses located on the side street;
2. Such corner lots, located at the intersection of two streets,
shall be deemed to have a side rather than a rear yard between the principal building and the abutting property on the side street. Such side yard shall not be less than the side yard requirements of uses located on the side street, and;
3. All such side yards described above shall conform with the
specific regulations related to yard space and related building height contained in the district provisions of this Title.
CEO Ross continued: the initial question from the applicant is whether or not that right-of-way was a street and was denied on the basis that this was a corner lot. The definition of street is:
Street means a way established or maintained under public authority or a minimum forty (40) foot wide private way constructed to Town standards as contained in Chapter 16.32, approved by the Planning Board and plotted, dedicated and recorded, or a way shown on a plan of a subdivision duly approved by the Planning Board. Also included are such ways as alleys, avenues, boulevards, highways, roads, streets, and other right-of-way.
CEO Ross continued: therefore, it was the opinion of the Code Enforcement Office that the lot met the definition of a corner lot as it is located at the intersection of two streets and the definition of street. Therefore, being a corner lot, the side yard setback cannot be less than the front yard setback for other uses on that property. 16.12.055(E)(2) a minimum forty (40) foot front yard setback is required from the right-of-way. The house on the right side of the property is currently set 15' from the edge of the right-of-way. The proposed house would be set 23'x 6" from that edge of that right-of-way, but as shown, the right-of-way actually comes up along the back side of the property. The proposed new construct would be approximately 15' from the edge of the right-of-way. The Administrative
Appeal was through the applicant to make the determination that this is a corner lot by definition.
Chairman Gardner asked if anyone had any comments with respect to CEO Ross's presentation.
Mr. Kingsbury asked CEO Ross: if the driveway were a street would the proposed structure be conforming? CEO Ross answered, yes. Mr. Kingsbury stated, so the whole thing hinges upon whether it is, in fact, a street? CEO Ross answered, correct.
Mr. Kaszynski asked; Does anyone else use the driveway? CEO Ross responded; that she believed that there are other properties that have rights-of-way.
Ms. Brown commented; I did go visit the property and there is a house behind this property and the only way you could get to that house is on this road. Ms. Brown asked if there were any abutters present who use that right-of-way. Several members from audience confirmed their use. Ms. Brown continued; I think there is no question that this is a right-of-way, it is not just a driveway.
Mr. Bouffard argued that the definitions in the ordinance were flawed. Mr. Bouffard said; At one time this was the driveway to this property; they grant the right to use the road, but they are clearly called easements. The problem occurs when you look at the second sentence which says: "also included are such ways alleys, avenues, boulevards, highways, roads, street and other rights-of-way." Of those terms, alleys, avenues, boulevard, and other rights-of-way, The only definition of a right-of-way in the ordinance is a private right-of-way and it references the Planning Board approved right-of-way. An alley could be a street. If you looked at the dictionary definitions you would come up with even more problems and more conflict. It is our intent to take the nonconforming use of the property and
converting it to a conforming use of the property. I think that is allowed by the ordinance. With the prevision that it is not more nonconforming than what was there before. The proposal that we have submitted has the building at its closest point.
Mr. Pinkham asked; how did the deeds read on this driveway. Did they read, the right to use, the right to pass or did they deed out a 12' wide, 24' wide right-of-way?
CEO Ross said; It is an easement deed for a right-of-way. It is for a 10'wide right-of-way over the paved drive.
Chairman Gardner asked if anyone else had anything to add.
Howard Patten - to clarify there seems to be an issue with the house out back. The house out back, the address is actually on the other street. That is not their primary way to that house. They actually access the other driveway.
George Derby - my wife and I own the house directly in back. That piece of property is landlocked except for the right-of-way that goes back to it. That property does not touch Coleman Avenue, there is a different lot down there.
Ms. Driscoll - I grew up next door to the property and would be inclined to agree with Mr. Bouffard that this may not be a right-of-way. I believe it is more of what you would consider a shared driveway. There are deeds that do suggest that it might be a right-of-way. Whether you consider an easement and right-of-way to be the same thing, I am not sure. We have access up that driveway for water and sewer lines and have been continually using that driveway to access the front portion of the abutting property, which belonged to my mother. I never considered it to be a street; I always thought it was a driveway, but a shared driveway. I have concerns about how the other lot, Map 26, Lot 23 came into existence. I question why that isn't still part of the property. There are no easements that
I am aware of that allow both of these parcels to use the same leech field. I am concerned that whatever is built here that the leech field be addressed.
Chairman Gardner asked if Ms. Driscoll objected to the proposal. Ms. Driscoll responded, In principle, No. Chairman Gardner asked Mr. Derby if he objected to the proposal; Mr. Derby said, No.
Ms. Brown commented that she felt she would not be prepared to overturn CEO Ross's decision. I think Heather made the right call. Under an Administrative Appeal, I don't see how we could overturn the CEO's decision because it is based solely on the fact that if we were to overturn her decision based on the way that this is proposed, we would be saying that she made a mistake in calling it a right-of-way and I feel she did not make a mistake in calling it a right-of-way.
Sarah Brown, as secretary, read the application as follows: Move the application of P&S Associates, LLC requesting an Administrative Appeal to overturn the decision of the Code Enforcement Officer to construct a single-family dwelling and to construct a single-family dwelling with setback no less than setback of existing dwelling to be demolished. Located at 79 Pepperrell Road, Map 26, Lot 22 in the Kittery Point Village Zone. Construction shall be in accordance with the sketch submitted dated and signed by Dean Boufard and Vern Gardner, Chairman. The motion was made to approve application by Ms. Brown, seconded by Mr. Kingsbury.
VOTE: 6/0 (Mr. Kingsbury, No - Ms. Brown, No - Mr. Pinkham, No - Mr. Emerson, No, Mr. Kazinski, No - Chairman Gardner, No). Administrative Appeal denied, with all in favor.
Chairman Gardner informed the applicant that any interested party of standing had 45 days to appeal the decision of this Board at the York County Superior Court and they would try to get Findings of Fact out within seven days of tonight's hearing.
FINDINGS OF FACT
Application #5 - P&S Associates, LLC
1. The applicant, P&S Associates, LLC, looking to overturn the CEO's decision to
construct a single-family dwelling and to construct a single-family dwelling with setbacks no less than setback of existing dwelling to be demolished.
2. This is a nonconforming lot with nonconforming structure. The applicant is
requesting a 60'setback where 40' is required.
3 The property is, in fact, a R-O-W.
4. Definitions - 16.08.020 Street - "a way established or maintained under public
authority, or a minimum forty (40) foot wide private way constructed to town standards as contained in Chapter 16.32, approved by the Planning Board and plotted, dedicated and recorded, or a way shown on a plan of a subdivision duly approved by the Planning Board. Also included are such ways as alleys, avenues, boulevards, highways, roads, streets, and other rights-of-way." Right-Of-Way, Private - "a platted and dedicated access route normally to back lot(s) and as approved by the Planning Board and recorded in the York County Registry of Deeds."
5. There was testimony from abutters which determined that the street was
commonly used.
CONCLUSIONS
1. The Board found (unanimously) that CEO Ross was correct in her decision and
that this is in fact is a corner lot with access over two streets; one of which is designated as a Right Of Way.
2. The Board also determined that this was in fact a Right-Of-Way.
3. The Board voted 6/0 with all in favor; the appeal was denied.
A motion to approve Findings of Fact was made and seconded with all in favor.
6. P&S Associates, LLC requesting a Miscellaneous Appeal to the terms of Title 16,
Section 12, Subsection 055(E)(2) (Page 239-3) of the Kittery Land Use and Development Code Zoning Ordinance in order to raze the existing 3-unit dwelling and construct a new single-family home. Located at 79 Pepperrell Road, Map 26, Lot 22 in the Kittery Point Village Zone.
Mr. Bouffard was recognized and stated; I do think that in the case of the Miscellaneous Appeal that definition of street comes into play again. I think there is still a great deal of uncertainty in that second sentence in the definition of the word street. While the first one is crystal clear as to what we are talking about, the second one uses the word street to define it and it also uses a number of other undefined terms in the ordinance. We have had some discussion as to whether a right-of-way is termed an easement or not as oppose to a right-of-way might make a difference.
Mr. Bouffard continued with the presentation in great detail.
Chairman Gardner asked if there was anyone present who would like to speak in favor of, or opposed to the application
Chairman Gardner recognized Allen Shephard, representing abutters Sam & Fergus Reid.
Allen Shephard said; I do not think that what the applicants are proposing is unreasonable in terms of the fact that they are going to demolish the building and have to come within compliance with the 40' setbacks. The only concern I have is I don't believe this Board has broad jurisdiction to grant any kind of variation to this 40' setback just by virtue of this language that is in the ordinance.
Chairman Gardner asked if there was anyone else who would like to speak.
George Derby was recognized.
Mr. Derby said; I own the property directly behind this one….the one that has the access to the 10' wide right-of-way. You have determined that this is in fact a right-of-way that requires a 40' setback. It seems that the concern is only up the easterly side. Mr. Derby continued with is concerns especially the back part of the driveway being addressed.
Chairman Gardner asked if there was anyone else who would like to speak about the application. Hearing no response, the Chair asked for the CEO's report.
CEO Ross reported: This is a nonconforming lot with nonconforming structures located within the Kittery Village Point Zone. Mr. Patten is proposing to demolish the existing 3-unit dwelling and construct a new single-family unit. This has been determined a corner lot with setbacks from the right-of-way per 16.12.055. The current house on the right-hand side of the driveway is 15' from the edge of the right-of-way. The proposed house on that side is 23'x6" from the edge of the right-of-way. As the right-of-way follows up to the edge of the property, a front property line setback must be met from the right-of-way
Board Discussion
Mr. Kingsbury stated that he did not feel that Board had right to grant relief from setbacks.
Chairman Gardner commented; we can apply relief based on the average distance of buildings to the road when you have a string of houses, and they are all closer to the road than the ordinance allows. For a new property can be equal distance.
The Board had lengthy deliberations.
Sarah Brown, as secretary, read the application as follows: Move the application of P&S Associates, LLC requesting a Miscellaneous Appeal to the terms of Title 16, Section 12, Subsection 055(E)(2) (Page 239-3) of the Kittery Land Use and Development Code Zoning Ordinance in order to raze the existing 3-unit dwelling and construct a new single-family home. Located at 79 Pepperrell Road, Map 26, Lot 22 in the Kittery Point Village Zone. Construction shall be in accordance with the sketch submitted, dated and signed by Dean Boufard and Vern Gardner, Chairman. A motion to approve was made by Mr. Pinkham and was seconded by Mr. Emerson.
VOTE: 4/2 (Mr. Pinkham, Yes - Mr. Kaszynski, Yes - Mr. Kingsbury, No - Mr. Emerson, No - Ms. Brown, No - Chairman Gardner, No). The Miscellaneous Appeal was denied.
Chairman Gardner informed the applicant that any interested party of standing had 45 days to appeal the decision of this Board at the York County Superior Court and they would try to get Findings of Fact out within seven days of tonight's hearing.
FINDINGS OF FACT
Application #6 - P&S Associates, LLC
1. The applicant, P&S Associates, LLC, was looking to raze the existing 3-unit
dwelling and construct a new single-family home.
2. This is a nonconforming lot with nonconforming structures located in the Kittery
Point Village Zone.
CONCLUSIONS
1. The Board found that the use was conforming, but the building, as presented, was
nonconforming because it did not meet required setbacks.
2. The Board voted 4 opposed and 2 in favor; the application was denied.
A motion to approve the Findings of Fact was made and seconded, with all in favor.
ADJOURNMENT:
A motion to adjourn was made by Mr. Pinkham, and was seconded with all in favor.
MEETING ADJOURNED: 10:00 P.M.
Next meeting January 8, 2008
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