TOWN OF FALMOUTH
BOARD OF ZONING APPEALS
TUESDAY, OCTOBER 23, 2007
These minutes are not verbatim
Members Present: Kevin McCarthy, Rich Bayer, Fred Jay Meyer, Jim Thibodeau, and Dennis
Keeler.
Members Absent: Willie Audet,
Mr. McCarthy is Chairman.
Meeting called to order at 7:00 p.m.
1. Minutes
The minutes from the July meeting were tabled until next month. There were no members
present who were at the July meeting.
Administrative item:
2. Kevin & Denise Kaserman- Are requesting approval under Section 6.2, to build a garage
and addition at 13 MacCabe Rd, Parcel # U32-013-O, zoned “RA”.
Mr. Farris presented the application. Non-conforming lot, but meets all the setback
requirements.
Public hearing opened; no public comment.
Mr. Meyer: Regarding the Portland Water District easement on the lot; any approval the Board
gives does not alter easement requirements.
The Kasermans’ stated that they have consulted with PWD and have a letter stating that this
addition meets the PWD setbacks.
Mr. Meyer moved to approve under Section 6.2 a. Mr. Keeler seconded.
Application approved 4-0.
Agenda:
3. Dennis Brown- Is requesting Conditional Use approval under Section 6.7, to build a boat
house at 38 Pond Villa Rd, Parcel #HL4-015, zoned “RBm.
This application was moved to the top of the agenda by the Chairman.
Mr. Brown has 3 ¼ -acre lots; this is the middle of the three. He is proposing to put a 1,000 sq
foot garage on this parcel.
Public comment period opened; no public comments.
Mr. Thibodeau asked if he will ever have any living space in this garage.
Mr. Brown said that no, he would not.
Mr. Thibodeau moved to approve the request for a conditional use approval under Section 6.7
to build a garage with no living space.
Seconded by Mr. Meyer.
Application approved 4-0.
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4. Dennis Buhelt- Is requesting approval under Section 6.2, to build a dormer at 169 Winn
Rd, Parcel# R03-084-H, zoned “FF”.
This application was moved to the top of the agenda by the Chairman.
Public comment period opened. No public comment.
Mr. Keeler moved to approve the application for a dormer for a room above the garage as
presented in the application.
Mr. Thibodeau seconded.
Application approved 4-0.
5. Jeffrey and Lynne Leighton-Are requesting an Appeal for property at 71 Underwood Rd,
Parcel # U19-109 zoned “RA”.
This application was tabled last month for review by the town attorney. Mr. Mazziotti, attorney
for the applicants, provided the board with aerial photos of the property, showing both the
property with a dotted line dividing the property into two lots as well as pictures which stand as
evidence of the age of the current garage. He has provided legal analysis to the town regarding
grandfathering of two lots which they want to be buildable lots. A building permit from 1974
seems to indicate that the house was moved to a new foundation; Mr. Leighton says that it was
the porch that was moved, not the house. The house is on the original foundation. There was a
permit in 1981 for renovations to the bathroom, but it has been lost by both the applicant and
the town.
Mrs. Leighton stated that they moved to the house in 1971, and purchased it in 1972. They
have never moved the property; there has been no new foundation for either the house or the
garage. The garage seems to her to be an old structure. They have not used the two vacant
lots; they have only mowed the edges where there is grass. Their mailing address on
Underwood Road is 71; the next house address is 75. She assumed based on this that there is
a lot between the two available to be built on. She said that Jimmy Taplan, superintendent of
sewer in 1971, the year sewer came to Underwood Road, led her to believe that there was a
sewer stub to that lot. Recently she found out that there is no sewer line to that lot. She also
stated that, even though her tax bill only contains one tax map lot and number, she always
thought that there were 4 separate lots. The lots that they now want to separate they have
always intended to separate and build on.
Public comment period opened:
Steve Ross, 91 Underwood Rd said that he is in agreement with the Leightons. Typically they
are small lots in this area, and this project would be in keeping with the area.
Public comment period closed.
Mr. Keeler asked if these were vacant lots when ordinance was passed in 1965.
Mr. Mazziotti provided tax assessment record from 1955 that shows that there were buildings on
the property. According to Mr. Mazziotti this is the only record that there were some buildings on
the property that far back. He states that the house is on one lot and the garage is on another,
and that the garage is inside the second lot by about 12 feet. The other two lots remain
completely vacant. The inside of the garage indicates that it’s pretty old; it looks old in the
photos from 1975. That is the best they can extrapolate that the garage predates the 1965
ordinance.
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Mr. Keeler has a problem if the house was there alone, and the three lots were merged in 1955,
when improvements were made.
Mr. Leighton stated that the garage was there when he got there. Mr. White, the previous
owner probably built it in 1955.
Mr Keeler asked if there were any similarities between the construction of the garage and house
as Mr. Leighton first knew them.
Mr. Leighton said that they both had the same siding. 8 inch cement block foundation under
both the garage and house. Mr. Leighton also said that he spoke with Mr. Taplan; it was Mr.
Taplan who told him where to dig the ditch to hook up the sewer. Mr. Taplan told him there
would be a stub at the adjacent lot. Mr. Leighton went to the sewer department to check on that
stub when they began to discuss selling the lot, and they found that it isn’t there.
Mr. Meyer asked when Mr. Leighton had spoken with Mr. Taplan.
Mr. Leighton said that it was in the last few weeks.
Mr. Meyer asked if Mr. Leighton had ever asked the town to break out the lots on his tax bill.
Mr. Leighton never questioned the bill.
Mr. Meyer asked about a building permit in 1974.
Mr. Leighton said that it was for the porch.
Mr. Meyer asked if the building permit was typed by the inspector.
Mr. Leighton said yes. He signed it, but that was quite a while ago. He was told to stay on the
same foundation. Mr Mazziotti further clarified that it was the town that prepared the permit.
Mr. McCarthy asked about the sewer ditch, wondering if Mr. Leighton had dug across the road.
Mr. Leighton said that no, the stub was on his land. He doesn’t remember, but they must have
dug up the road to place the stub. He did not do anything for the vacant lots.
Mr. McCarthy references the 1955 tax sheet: it shows Lawrence White, and there is only one lot
listed, U19-109.
Mr. Mazziotti said that the town has showed this as only one lot for their tax purposes.
Mr. McCarthy observed that the lot size as shown on the building permit of 1974 includes all
four lots.
Mr. Mazziotti called the accuracy of the permit into question, as it shows the house being moved
to a new foundation, when that wasn’t the case. He argues that whoever filled out the permit
copied the lot number from the tax records based on the street address.
Mr. McCarthy feels that whoever filled this out doesn’t matter. For 30+ years the tax bill has
shown this as one lot. In reading Mr. Plouffe’s letter, his understanding is that the board needs
to make a factual as well as legal determination. In Mr. McCarthy’s view of the facts, it looks like
everyone has treated this as one lot since 1955.
Mr. Mazziotti argues that “everyone” doesn’t include the Leightons’. Mr. Leighton pays his tax
bill, he didn’t expect it to determine that he only has one lot. He applied for a permit, they
compared his address to tax card and filled the lot number into the permit.
Mr. McCarthy is concerned that it has been one lot for one purpose, and two lots for another.
Mr. Thibodeau asked Mr. Farris about the difference in the taxes if two lots are combined into
one lot.
Mr. Farris stated that developable property is taxed at a different value than undevelopable
property. It is not uncommon for lots to merge by operation of the assessor, in order to have
one tax bill.
Mr. Thibodeau wondered if the lots were treated separately would the owners have paid
additional taxes.
Mr. Keeler asked Mr. Farris if his thought is that the town tax assessor could cause a merger to
happen by the way they classify lots for tax purposes.
Mr. Farris said that it was very typical to merge lots prior to subdivision statute of 1971 but that
did not take away the legal division of lots; it was just an administrative convenience of the
assessor.
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Mr. McCarthy asked Mr. Plouffe to clarify that the convenience of the tax assessor in treating
these lots as one lot does not establish these lots as one lot in and of itself. It is evidence, but
not proof.
Mr. Plouffe said that yes, the assessors treatment of non-conforming lots involves more than
convenience; most try to determine if they have been merged or not. Mr. Plouffe did not go
back through the ordinances from 1965 forward on this issue so he doesn’t know if the merger
provision was the same as it is now. When you have a vacant lot and a built lot in common
ownership which are adjacent, they do not merge, according to current ordinance. Ordinance
has been the same for 10-15 years. He assumes the ordinance has remained the same.
Mr. Plouffe said that the boundary survey shows that the house straddles lots 58 and 60 a bit.
One of his questions has been why the structures are all put on two lots; he speculates that
maybe it is because the plan always was to sell lot 62 and 64? According to testimony tonight,
the buildings have never been moved. Maybe 62 and 64 could not support septic and that’s
why they were never built on; before the sewer came in maybe they were not buildable.
Mr. Meyer asked about tax bill being different if they were being taxed for two buildable lots.
Mr. Plouffe said that yes, if they were buildable lots, the tax bill would not be what it is. This
could be a town mistake; it is not expositive in and of itself.
Mr. McCarthy raised the issue of abandonment, but after discussion it was decided that it did
not apply in this case.
Mr. Keeler moved to approve the Leighton’s appeal that lots 62 and 64 have not merged into
lots 58 and 60 and therefore lots 62 and 64 are grandfathered and remain buildable lots. This
motion reverses the decision of the Code Enforcement Officer.
Mr. Thibodeau seconded.
Mr. Keeler stated that since we don’t have the 1965 ordinance, in light of evidence to the
contrary, he is minded to go with Section 6.8 of the current ordinance. His question is when
zoning came into Falmouth in 1965, were these vacant lots. Testimony from Mr. Leighton
saying the garage and house were the same makes it a reasonable assumption to make that
the garage was in place in 1965. Court did hold in 2001 that use of a perimeter description for
multiple lots does not destroy the multiple lots. He is willing to make the leap that the garage
was there in 1955. He thinks it retains its status.
Mr. Thibodeau said he is concerned the Board will set some kind of precedent on Underwood
Road. Will this still be a conditional use, non-conforming lot, and will it have to come back here
if it were built on?
Mr. McCarthy said that yes, they would.
Mr. Meyer takes the position that the lots had merged before 1965. The 1963 deed refers to a
single lot or parcel. It was common for deeds to use old plan lot descriptions without intending
to preserve particular lots. No owner has until now gone to try to separate them to preserve their
right. He concludes that it has been a single lot since 1963.
Mr. McCarthy is also concerned by the precedential effect of this; probably a lot of lots in these
old subdivisions, particularly on the water, where people may be sitting on something they think
of as one lot that was two or even three lots a long time ago. He is concerned about opening up
a can of worms that the Board is not equipped to address, or that the ordinance is not equipped
to address. He agrees with Mr. Meyer that if the property owners had made some effort to
separate these out, something other than this application, it would be better. He observed that
there is over 30 years of history here, and aside from only subjective statements from the
owners here tonight, from all appearances it was only one lot. His feeling is that Mr. Farris’s
decision was the correct one. From the Town’s perspective, he can’t see how the Board can
conclude that section 6.8 applies, and that these lots are buildable lots.
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Application denied 3-1 (Mr. Meyer, Mr. McCarthy and Mr. Thibodeau opposed)
6. Rock Ridge Properties- Is requesting Conditional Use and Variance approval under
Sections 6.3 & 8.4 for a Multiplex at 15 Allen Ave Ext. Parcel U35-001, zoned, “RAm”.
Steve Sanderson from Rock Ridge Properties presents information which was requested by the
Board at a previous meeting. Mr. Sanderson states that he is here just for the conditional use
request; the variance request is tabled for tonight. He distributed an email exchange from Skip
Varney at Public Works, which shows that Mr. Varney believes that the project will not increase
the traffic risk or financial burden on the roads and private ways, but that Skip would like to see
pedestrian access to the Pleasant Hills Woods property. Further material includes a purchase
and sale agreement, a neighborhood study which shows that the style of the project is
consistent with the neighborhood, as well as a traffic study by William Bray.
Mr. McCarthy said that at the last meeting, questions arose around Section 8.3 and 8.7
requirements. He asked how these materials address those issues.
Mr. Sanderson began with Section 8.7 condition A: in looking at the site plan, both the
structures are well within the depth of the property in looking at the abutting buildings, they are
quite a distance away from those folks, so he feels that they are not really adding anything to
the view of the neighbors. He stated that they have done everything they can to provide for
screening and that it is adequate.
Mr. Farris clarified that this is a conditional use solely because it is a multiplex. It needs
conditional use approval before it goes to planning board. They need variance for lot width or
they can create a private way to provide the lot width they need.
Mr. Sanderson said that they are planning to create a private way; it is shown on the site plan.
Mr. Thibodeau asked if the fire chief has reviewed this plan.
Mr. Sanderson does not have a letter from the fire department tonight.
Mr. Meyer asked if the drawing C.1 is showing the private way that would give the frontage
necessary for this lot.
Mr. Sanderson said that is correct. This would be a private road, built to the town standards, but
the town would not be responsible for it.
Public comment period opened:
Mr. McCarthy reminded the public that the application at this point was only for the conditional
use request for a 7 unit multiplex only – the Board is not discussing the variance tonight.
Mr. Sanderson said that the term multiplex infers condominiums or apartments. He clarified that
they are now classifying this project as condos only; they changed the project so there will be no
apartments here. These will be owner occupied units only.
Win Phillips of 4 Allen Extension is concerned about a multiplex in a residential neighborhood of
single family homes. He is interested in the details of the traffic study; his information says that
a multiplex of 7 units would impact traffic a great deal more than the company hired by
Rockcraft said. He doesn’t agree that a 7 unit apartment building would architecturally match
Cape Cod homes. He hopes the board votes it down.
Mik Van Halen of Allen Ave brought one petition signed by 72 residents and another, more
detailed petition signed by 18 immediate neighbors of the proposed property. The petitions
address a few of the points in the conditional use application. The signers of the petition feel
that the project would not be compatible with the single family home neighborhood which would
surround it; they feel that it would negatively affect property values of the area, and that it would
make the traffic issue in the neighborhood worse.
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Mr. Meyer asked if the applicant’s change from rental units to owner-occupied units would
change the neighbors’ opposition.
Mr. Van Halen said that either way, they would be opposed to it.
Trevor Thaxter of 9 Allen Ave spoke about how the town has a comprehensive plan, which
clearly directs how we look at land use. He was concerned about the possibility of setting a
precedent in the neighborhood, since there is another property, across the street from the
proposed project, which would be big enough for a development. This would change the
specific character of the neighborhood. He is very concerned about the increased stress on
public services that a multi unit development would cause. He is not convinced that the traffic
study is accurate; he feels that it is too low. He feels that conditional use should not be granted
on a number of reasons.
Aaron Bishop of 24 Allen Ave Extension raised the issue of rental apartments versus owner
occupied units. He wondered how owner occupied would work; how it would be policed. He
stated his strong opposition to the multiplex, however it was worded. He felt that people would
buy units and then sublet and that people don’t treat a rental as they do a home. He also raised
the traffic issue, saying that traffic is at the boiling point now. He doesn’t feel that a complex
could be built to fit with the character of the neighborhood. He said that it would make him feel
that his home is less valuable.
Robyn Pfeffer-Hess of 19 Allen Ave extension said that her concern was safety. She said that
there are a lot of accidents in the area, and lots of children and school busses in the area. The
traffic study done in 2005 never mentioned the accidents that have happened in this area. She
testified that last year there were two major accidents near Carriage Road. She asked about
the changes to the road and the required road frontage.
Mr. Farris explained that the private way would provide the road frontage needed. It would need
to be built to specific standards.
Mrs. Pfeffer-Hess doesn’t believe this is the best use of the property. There is already a single
family unit on it. They are changing this property and it doesn’t make any sense.
Mr. Meyer asked for clarification. As the immediate abutter to the east, would Mrs. Pfeffer-Hess
be able to see the units, despite the wooded area.
Mrs. Pfeffer-Hess said that she utilizes most of her property, that there was maybe an acre
wooded, and that she would definitely be able to see the project.
Charles Woolsey of 11 Allen Ave Extension testified that he has lived there for 11 years and
says it is the most treacherous stretch of road in Falmouth. He feels that to increase traffic in
this area would be a mistake. He brought a slide show to present to the Board members
showing the character of the neighborhood, and the traffic during different parts of the day.
Anita Jones of 13 Allen Ave Extension also testified as to the traffic in the area. She is
concerned about the property values, and also concerned about the change in terminology
(from rental to owner-occupied). She said that insurance companies don’t want rental or condo
written in the policy, as people don’t take care of them.
Mr. Meyer asked Mrs. Jones about the views from her house; would she be able to see the
project?
Mrs. Jones said that yes, they are proposing to take down a lot of trees.
Lynn Hathaway of 119 Ledgewood Road said that she lives four homes down from the
proposed project. She said that the traffic at the intersection with Allen Ave. scared her.
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Public hearing closed.
Mr. Thibodeau observed that there was a threshold issue here. The separation of this private
way with the next private way down is an issue. He doesn’t believe that the letter provides
adequate evidence the planning board needs. He didn’t think that he could rely on this traffic
study at this time without a peer review. He feels that the neighbors have done an excellent job
presenting their case. He wonders if this project can ever surmount the traffic and safety issues
or the tree reduction issue. He doesn’t see how adequate buffering can take place. He doesn’t
think the turnaround can be achieved with what he has seen here. He is ready to vote against
the application.
There was some discussion about the section of the ordinance that was of relevance tonight.
Mr. Farris clarified that the 250 foot separation requirement was a Planning Board issue. Mr.
McCarthy clarified that the traffic concerns that the ZBA are dealing with are in Section 8.4 and
8.7. Mr. Thibodeau pointed out that they were going for a Private Way, and he didn’t want to
spend a lot of time on something that would not pass the Planning Board.
Mr. Sanderson argued that they are within the 10% requested and that their team is prepared to
make that argument. He said that they are envisioning speed bumps to deal with traffic issues,
but that they haven’t had the opportunity to present that stuff because they can’t go before the
Planning Board without getting past Zoning Board. He feels that there are all kinds of
opportunities for improvement to the neighborhood, but they can’t present them without getting
past this Board. It sounded to him like the biggest point is traffic. Speed bumps would help with
the speeding problem. As far as screening there are old growth pines on both sides, with
significant density. He would have to bring in pictures. Regarding rental versus owner occupied
units he said the town would make that distinction, not him.
Mr. McCarthy asked if Mr. Sanderson would be willing to put some type of restriction in the
condo documents that would say the units could not be rented.
Mr. Farris said he was not sure you can do that. That would need legal interpretation.
Mr. Sanderson said that he would be willing to do that. He asked if the Planning Board
reviewed condo documents.
Mr. Farris said that yes, they do.
Mr. Thibodeau asked what the enforceability is.
Mr. Farris said that it doesn’t matter whether it is a condo or single family; an owner can rent it
out to whoever they want, unless the homeowner association policed it.
Mr. Meyer said that he saw two basic obstacles. He felt that the design materials are well done.
He assumed that the applicant has the capacity to address the technical issues. The first
obstacle he saw was the traffic issue, but he is willing to pass that off to the Planning Board.
The second obstacle is compatibility: this is a neighborhood of single-family homes. He sees an
incompatibility with the surrounding neighborhood, and a danger of an inverse effect on property
values.
Mr. Keeler said that he was grappling with this only in the context with what is before this board.
He feels that they have an uphill battle with the Planning Board; traffic will be a significant
Planning Board issue, but that they were not here to play Planning Board. He feels that he has
to trust the traffic study. He hears what the neighbors are saying about traffic and safety, but he
isn’t sure that they are the issues of the Zoning Board. This is a conditional use; council has
indicated certain permitted uses, and certain uses that are conditional. Section 8.3 sets out
certain issues. When dealing with a conditional use in a zone, the burden shifts to this Board.
Regarding property values/home values. This project consists of 7 units on 3 1/3 acres. He
doesn’t know if they are visible from the street, what the visual impact is. He feels that the
project has some real issues, but he isn’t sure they are conditional use issues. Mr. Thaxter
referenced the comprehensive plan; the town council has determined that this is a conditional
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use for the zone. Mr. Keeler said that he had some concerns on the project, but he is having a
hard time bringing those concerns to the proposal before the Board tonight.
Mr. McCarthy observed that, even though it is difficult when there is a great deal of public
opposition, this is a use which is permitted under certain conditions. If the conditions are met,
the Board should grant the permit. He said that the Zoning Board is not a legislative body; they
are here to implement the ordinance the council has given them. The ordinance gives out
general guidelines. There are several allowable uses in this zone and this is one. He observed
that this is a very oddly shaped piece of property. He expressed a concern that they are
“shoehorning” a project into a piece of property. This project can’t help but have a significant
detrimental effect on the enjoyment of use of abutting properties. Other projects in this area
have been put on larger lots. He argued that any project, any house built in town will create a
traffic issue. Allowed uses run smack into what is good for the community. He said that the
Board needs to determine if these conditions have been satisfied, and he was not convinced
they have. Specifically, 8.3 B: scale compatibility as it relates to this piece of land, and 8.3 C
and the traffic issues. The Board has heard a lot from the neighbors; he isn’t sure how the
project will address the traffic issue. He said he isn’t sure if they can. He isn’t sure that these
conditions have been met.
Mr. Keeler referenced Section 8.3 J: it seems to him that if it is a conditional use in the district,
the Board should approve it. But he said the Board would have to determine that the traffic, etc.
is substantially different, not from the single family homes, but from the characteristics of other
multiplexes in this district. He is having a problem with that. He said that conditional use has
always struck him as something the council has decided, and the Zoning Board can impose
conditions if there is something unique about it.
Mr. Thibodeau stated that the location of this specific lot within less than 250 feet creates a
condition they can’t meet under Section 8.3 F. By compressing where those two streets come,
you increase congestion. Furthermore, Sections 8.3 B and 8.3 D which the neighbors set forth
in their letter are paramount issues. Mr. Thibodeau feels that the applicant has done a great job
but in looking at these criteria in Section 8.3 B he feels it can’t get there. Sections 8.3 C and 8.3
D also.
Mr. Keeler asked if this project differs substantially from the characteristics of a multiplex in a
single family district. He said that you could argue that any multiplex differs substantially with
the single family district.
Mr. McCarthy raised the question from the previous meeting relative to Section 8.7 G, showing
adequate technical and financial capacity of the applicant.
Mr. Farris said that he had a phone call from Mr. Sanderson’s banker. There was no letter
tonight due to a secretary being ill, but the banker confirmed to Mr. Farris over the phone Mr.
Sanderson’s financial capacity.
Mr. Sanderson said that his technical capacity was covered in the plans.
Mr. Meyer made a motion to deny the conditional use application under section 8.3.
Mr. Thibodeau seconded.
Mr. Meyer stated that the point made about Section 8.3 J is excellent. He feels that the specifics
of this lot contribute to an adverse effect on adjacent properties.
Mr. Keeler felt that it was important to get the standard on the table. There is something unique
about this location that differs substantially from other locations. He said that he was troubled
by this particular location.
Mr. McCarthy agreed that the language in Section 8.3 J goes to his concern as to the use of this
property. He doesn’t see how this property could meet the conditions.
Application denied 4-0.
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7. C. O’Brien- Is requesting an Administrative Appeal for relief from the decision from the
Code Enforcement Officer in regard to a permit at 26 Hartford Ave. Parcel#U04-027, zoned,
“RA”.
This agenda item deals with a fill permit issued by the CEO in regards to an occasional body of
water. The land owner asked to fill a depression in the ground which required a permit. The
neighbor, who is the appellant, objects to the issuance of the permit.
Mr. Kany is representing C.O’Brien, a Maine corporation, which is in the process of building a
single family home on an adjacent lot to the lot where the pond is located. He referenced
Sections 5.34 A.3, which says that a permit for 16-1,000 cubic yards of fill can be approved by
the CEO, and 5.34 C, which determines that fill within 10 feet of a wetland should go to the
Planning Board. The applicant feels that in this instance the CEO was wrongly called upon to
determine if the pond was a wetland, and that the original application should have gone to the
Planning Board for review. This “pond” has water in it most of the time; it also has cat o nine
tails, and pond vegetation. The applicant has witnessed the landowner removing pond
vegetation. According to the applicant’s engineer, Alan Burnell of Pinkham and Greer, the Army
Corps standards state that a vernal pool can be manmade or natural, that as long as it functions
as a vernal pool it is one, and that a pond can be determined as a vernal pool only in the
springtime. The applicant feels that this could not have been done, since the permit was issued
in August. Dick Sweet had determined that it wasn’t a wetland since he did not see any wetland
vegetation. Mr. Kany argued that since the landowner had removed wetland vegetation the
analysis could not be complete or accurate. Just because it’s manmade doesn’t mean that it
isn’t a wetland. This pond is serving as a detention pond for the neighborhood, and is serving to
filter out surface contaminants before they hit the estuary. According to the ordinance, this kind
of drainage way can not be filled without Planning Board approval.
The landowner has argued that Section 5.34 C says that fill can go directly into the wetland, or
stream, but not within 10 feet of the wetland edges or banks. Maybe it is not in this board’s
experience to determine whether this is a pond or a wetland, but is in the board’s purview to
review the decisions of the CEO. In this instance, Mr. Kany feels it is better to err on the side of
turning this over to the Planning Board to determine whether this is a wetland or not. He said
that the applicant is not saying the landowner can’t fill it in; just that they should first go to the
Planning Board, and have Planning Board say what the pond is and whether it should be filled
in.
Public comment:
Jim Katsiaficas of Perkins, Thompson representing the land owners said that the land owner’s
father dug the pond around 1950 for her to go skating. It has been used as a reflecting pool.
The pond scums over from time to time. She wants to fill it in to use the land. It is a 4700 sq ft
pond, approximately; a permit from the CEO is needed for fill between 16-1000 cubic yards.
Planning Board says fill shall not be put within 10 ft of streams, drainage ways, ponds, etc. He
asked if the Planning Board needs to approve fill going into the wetland. They regulate the 250
feet AROUND the wetland, not the wetland itself. He said that the owner is aware that they may
need the approval of DEP and Army Corps before the fill is placed. The question is what is the
town authorized to do. Does this meet the town’s standards? Mr. Katsiaficas said that Dick
Sweet has been out to the property, and his opinion is that this is not a wetland or vernal pool. It
is not on the town vernal pool maps; therefore it is not a vernal pool for either the town purposes
or DEP’s purposes. He said that they think it meets the town ordinances and that there was no
error on the part of the CEO and that the Board should affirm the decision.
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Dick Sweet said that this is a unique site: the pond itself is manmade as determined by aerial
photos. There are three parameters that were used to define a wetland: first, is the soil hydrant,
is the color of the soil indicative of high water table. Yes, the soil is hydrant. Second parameter
is hydrology; the groundwater comes close to the surface during the spring. Third parameter is
pond vegetation (wetland plants). Have plants been removed, were there any to begin with?
The DEP NRPA regulations, specifically 4.80 q #20 deals with constructed ponds. Mr. Sweet
talked with Mike Mullen at DEP, he said that this regulation was added the NRPA primarily for
farm ponds, ponds that were in evidence when the regulation went into effect. Its purpose was
mainly for improvements to them, to allow alterations to the pond as it sits as long as you do not
make it bigger. The owner of the pond is clearly within their rights to remove all the wetland
plants. Because it is a constructed pond the wetland plants can be removed; that portion of the
pond that is missing wetland plants is not a wetland because it is missing one of the three
criteria that define it as a wetland.
Mr. Keeler asked for clarification: if someone is allowed to go in and remove wetland vegetation
then they have eliminated that aspect of the definition.
Mr. Sweet said that you can’t take a forested wetland and start removing plants if it is a natural
wetland. He said that you can fill up to 4300 sq ft of natural forested wetland as long as it is not
a significant wetland. This pond is not a forested wetland and was in effect before the NRPA
rules came into effect.
Mr. Katsiaficas said that this is a constructed pond for a specific purpose under NRPA, so you
can remove the wetland plants.
Mr. Sweet said that he met with John McClean from DEP earlier this month. In a phone
message Mr. Sweet was told that the DEP is considering this an excavated pond outside their
jurisdiction and it can therefore be altered.
Mr. Keeler asked if he had compared the definitions under NRPA to Falmouth definitions.
Mr. Sweet said that Falmouth primarily uses the NRPA rules for the definition of wetland.
Mr. Meyer asked for clarification: a farm pond that had an active growth of plants could be a
wetland, but if you removed them it would no longer be a wetland?
Mr. Sweet said yes.
Mr. Meyer said that the Falmouth ordinance says “prevalence” of plants. He asked Mr. Sweet
how he determines that.
Mr. Sweet said that the Army Corps standards say that you dig a hole in the middle of the
wetland to test the soil and then take up circles outside; more than 50% of plants that come up
in the circles have to come up as wetland plants to be a wetland.
Mr. Meyer asked Mr. Sweet if he has seen evidence of cat o nine tails.
Mr. Sweet said that he saw one approximately two foot area of cut cat o nine tails. The dark
green grasses that are fringing the dry clay bed are wetland grasses. This kind of pond is an
exception to the rule. The ordinance reference to a prevalence of plants does not apply in this
case.
Mr. Meyer asked if this pool did not have a prevalence of wetland grasses when Mr. Sweet saw
it. Mr. Sweet said no.
Pamela Dipetro-Hale, a Falmouth resident, testified that she has lived adjacent to the property
for many years. She testified that this is a man-made pond. She is very concerned with the
reports offered; she is also concerned with the possibility that a property owner would not be
able to do what they want with their property. She is asking that the permit remain in effect until
and unless other factors come up.
Mr. Kany said that they are not contesting the man made pond. The owners have admitted that
they have let the pond go. It is the applicant’s position that because of this the pond can no
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longer be filled. By Army Corps definitions this may very well be a vernal pool; that has to be
determined in the spring, but the permit was issued in August. No one has addressed the issue
that this is a drainage issue; the pool has become a drainage way, and should not be filled in
without Planning Board approval according to ordinance. Yes, in Section 5.34 is says you can
go to the CEO for a fill permit. But if it is a vernal pool it should go to the Planning Board. This
is a 5,700 sq foot pond. Only 80% of vernal pools in Falmouth have been mapped. He
objected to the testimony made by Mr. Sweet about statements made by members of the DEP;
he felt they were hearsay.
Mr. McCarthy referred to a passage from the letter from Mr. Burnell, the applicant’s engineer,
which said, in reference to the pond “although this area may not meet the technical definition of
a wetland”.
Mr. Kany said that yes, because of the removal of the wetland vegetation it doesn’t meet one of
the three criteria. He felt that it was disingenuous to remove the vegetation and then it doesn’t
meet the criteria.
Mr. Keeler asked if it meets the definition of a vernal pool.
Mr. Kany said that Falmouth refers directly to “natural”.
Mr. McCarthy asked about the applicant’s interest in this issue.
Mr. Kany said that his client cares so much about this issue, first because of the drainage issue,
and second, if it is filled in it is potentially a buildable lot and the new home being built by C
O’Brien is very close; it is roughly 50-60 feet from the new home to the edge of the pond.
Mr. Katsiaficas said that when Mr. Kany referred to the owner letting the pond go he was
incorrect. He said there was no standard under the ordinance to maintain drainage areas for the
entire area.
Mr. Farris described his credentials and training in regards to soil science. He said that wetlands
are not easy to determine, even for the state authorities. He said that he received the fill permit,
he investigated the site which was mostly dry at the time, and that he is familiar with the pond.
The pond was sometimes drained and cleaned, and the vegetation was cut back.
Mr. Thibodeau observed that it comes down to determine if this is a wetland or not. He doesn’t
feel that it is a vernal pool. If you take what Mr. Sweet says at face value, the property owner
can fill in their wetland if they meet DEP’s requirements. He wondered it this should go to the
Planning Board to determine if this is a wetland.
Mr. Keeler asked Mr. Katsiaficas if the pond goes over the boundary line.
Mr. Katsiaficas said that Elmira Wilson owns the property. He doesn’t believe it spills over into
the next property. It is all in lot 26.
Mr. Keeler asked Mr. Katsiaficas his response to the question of whether or not the pond is a
drainage way.
Mr. Katsiaficas said that Pinkham and Greer have made the assertion that it is a drainage area
for the entire neighborhood, but that there is nothing indicating that this serves as a drainage
way; even if it was the ordinance regulates within 10 feet of the drainage way, not the drainage
way itself.
Mr. McCarthy asked how the pond fills up.
Mr. Farris said that it fills from storm water and ground water. There is a piped outlet, but no
noticeable inlet. The area is adjacent to saltwater marsh, so there may be some drainage from
surrounding areas.
Mr. McCarthy asked if the outlet pipe is gated or is there a valve or is it set at a certain
elevation.
Mr. Farris said that somewhere in the pipe Mrs. Wilson says there is a valve, but he can’t attest
to that.
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Mr. McCarthy asked if there are any drainage issues in the area.
Mr. Farris said yes, some of the lots there are low lying.
Mr. McCarthy referenced Mr. Kany’s earlier statement that the new building is within 50-60 feet
of the pond. He observed that, if this pond becomes a vernal pool, the ordinance says that
there is no building within 75 feet of a vernal pool, and therefore the building would be illegal.
Mr. Kany said that the issue is what goes beyond property lines. Regulations went into effect
September 1st, and the construction would have preceded that.
Mr. McCarthy asked Mr. Katsiaficas what there plans are as to working with the DEP and Army
Corps.
Mr. Katsiaficas said that they have been making inquiry of DEP. If DEP says that it isn’t within
their jurisdiction it may end there, but they will make the reasonable inquiry that they have to
make to insure that they are complying with the law.
Mr. McCarthy asked Mr. Farris how he can monitor that.
Mr. Farris said that DEP is not likely to write a letter saying that they do not have jurisdiction.
Mr. Katsiaficas said that they we will try to get a non-jurisdiction letter if they can.
Mr. Farris said that the DEP would typically provide the town a copy of any letter and that he
could contact his NRPA representative for a copy.
Mr. Katsiaficas said that what they have heard from DEP is that they consider it an exception to
NRPA.
Mr. Keeler made a motion to affirm the CEO in issuing the fill permit, thereby denying the
application.
Mr. Thibodeau seconded.
Mr. Meyer said that this was not a vernal pool, it was manmade. The evidence from Mr. Sweet
that it is not a wetland is convincing. The appellants engineer agrees with all the conclusions
made in Mr. Sweet’s letter. Is it a drainage way? This is not a defined term. Mr. Meyer said he
felt that the pond doesn’t meet that.
Mr. Keeler said that it may be a vernal pool under some jurisdictional issues, but not Falmouth’s.
Not much guidance available under drainage way. He thinks of a drainage way as a ditch along
the road. According to the definitions in Section 5.34c, he doesn’t see it applying here.
Application denied 4-0.
8. Colleen Donovan dba Foreside Antiques- Is requesting Conditional Use approval under
Section 8.3, change the use at 48 US RT 1, Parcel # U01-209, zoned “RA”.
This is a nonconforming use on a conforming lot. Colleen Donovan has owned an antique shop
for four years, and wants to move to a bigger space. She is buying the building from Champion
Glass.
Public comment period opened:
Julie MacDonald, 4 Andrews Avenue, lives across the road from the building in question. Her
primary concern is the traffic in this area, and any potential increase in traffic from a change of
use. Champion Glass does not get a lot of traffic, and they are closed on weekends. There is a
ton of traffic already in this area due to the Mackworth Island situation. She wants a traffic study
done of this area. She is concerned that an antique store in this area, with it being printed in
the antique guide, would bring more people in. Tent sales on the weekend would also bring in
more people. She feels that that area cannot sustain any more traffic.
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Janice Couture, who owns skin care clinic next door, is in support of the antique store going in.
She said that the building used to be a gas station, and it didn’t look good. She said that
Champion Glass has not taken good care of the building. She believes that this business would
create a facelift for the building and the neighborhood. She thinks it would increase the property
values. She doesn’t think it would increase the traffic that much. She observed that Champion
Glass is open on Saturday mornings. Some people park at this building when they are going to
Mackworth Island whether there is a business there or not.
Richard O’Leary of 4 Andrews Avenue disagreed with the previous speaker. He said that
Champion Glass sold the building because they weren’t making any money. They did not have
a lot of traffic. He doesn’t see this property being used as a parking lot. Pennisi is used as a
parking lot. He has only ever seen this property used as a parking lot during road races. He
pointed out that Ms. Couture is also trying to sell her property. He doesn’t believe it is good for
the neighborhood, and he thinks it will not increase the property values for anyone in the area.
Public comment period closed.
Mr. Meyer asked about the cosmetic changes to the building.
Ms. Donovan said that they were changing it from a garage to a more residential looking
building. They plan to remove both the garage doors. She said they are planning on being
open Wednesday through Saturday, 10:00am – 4:00 pm. In response to Mr. Meyer’s question
on how many customers she expects, Ms. Donovan stated that some days she is all by herself,
and some days she’ll have 5 or 6 customers. She said she could provide evidence to support
that.
Mr. Keeler asked Mr. Farris if this was just changing one nonconforming use to another.
Mr. Farris said that yes, that was the case.
Mr. Keeler asked about the traffic island.
Ms. Donovan said that you can take a left hand turn out of the building.
Mr. Thibodeau said that the proposed appearance of the building is an improvement. There is
no concrete evidence that traffic would be increased. Former use was a commercial use on
Route 1 and he doesn’t know if there is any basis for this board to deny a continuation of this.
Mr. Farris observed that the building was built in 1963 as a Sunoco station, prior to zoning.
There were leaking gas tanks on the property. It has always been a commercial use.
Ms. Donovan said that she had DEP documents that the gas tanks were removed and the site
cleaned up.
Mr. Keeler observed that under Section 6.5 the board can approve this conditional use if this is
an improvement over the prior use.
Ms. Donovan said that the character of the building would change, becoming more user-friendly.
She observed that there still would be traffic on Route 1 even if this was a residence. She
stated that she is listed already in the antiques directory, and it doesn’t seem to increase traffic
to her current store.
Mr. McCarthy asked if this property is subject to the Route 1 beautification project.
Mr. Farris said that there were no site plan review requirements, no buffering requirements. It is
a simple building permit. The change of use is simple. No requirement for planning board
approval.
Mr. Meyer asked if there were any plans for an apron on front.
Ms. Donovan said that there are plans for the right side of the building, lawn, trees and such.
She said she was happy to landscape if the board wanted, but that she was worried that people
would not be able to see both ways when leaving the driveway. She plans to use the current
signage; she is moving the sign from her current building to this new building. Her current sign
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is within one foot of the pole already on the property. Her sign is not currently illuminated, the
Champion Glass sign is not illuminated, and she has no plans for an illuminated sign.
Mr. McCarthy asked if there were any plans for additional lighting.
Ms. Donovan said that no, they don’t want to inflict all-night lighting on the neighbors.
Mr. Thibodeau moved to approve the request under section 6.4 to change the use to an antique
shop.
Mr. Keeler seconded.
Mr. Keeler stated that he felt that this use is more compatible with the neighborhood and that he
thought this would be a better use of the property than the current use. He wondered if this
would this be a better use with regard to pedestrian and traffic than the current use, but felt that
the nature of the traffic might actually improve, with no glass trucks coming in and out. He
referenced Section 8.7, and the ability of the Board to impose conditions to address some of
these concerns.
Mr. Keeler asked Ms. Donovan if she was willing to accept conditions of usage regarding hours
of operation, and she said she was.
Mr. Meyer observed that the Board could impose conditions here, Section 6.4 allows it. He was
reluctant to micromanage the business, however. Regarding the visual impact: he felt it would
be an improvement. He told Ms. Donovan that they could impose some conditions, or that she
could come back with some proposals to mitigate some of the issues raised. He said he
guessed that this use won’t have a lot of traffic, and that overall, he feels it would be an
improvement.
Ms. Donovan said that she was willing to have a closed sign as of 6pm, and that she is not open
Sunday or Monday. She said that it is really a low traffic business, probably one of the lowest
traffic businesses.
Mr. McCarthy said that the only condition he was comfortable with is with regards to an
illuminated sign. He resists a condition limiting the hours of operation. He was also concerned
with landscaping. He said that he understood Ms. Donovan’s position with regards to sightlines,
but something should be done with the appearance.
Ms. Donovan said that she was happy to put low lying plants in the island. Her only concern is
visibility.
Mr. McCarthy asked Mr. Farris if there was any way he could monitor and/or work with the
applicant around landscape design.
Mr. Farris said that he thought so. He was sure that there were some standards in the site plan
section.
Mr. McCarthy asked to attach a condition to the motion that there be no illuminated sign.
Mr. Keeler agreed with Mr. McCarthy.
Mr. Keeler asked if the property had its own curb cut.
Both Ms. Donovan and Mr. Farris said that there were two curb cuts. There is an access to
Kelley Rd. directly from the parking lot.
Application approved 4-0.
9. Peter Wellin- Is requesting a Variance to partially tear down and rebuild a house at 31
Town Landing Rd , Parcel # U17-063, zoned “RA”.
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Peter Wellin presented the application. The house as it currently exists has three levels with
two dwellings. The lower level is rented out. The previous owner had a makeshift bedroom and
used a half bath on the second floor. There are several severe code issues in the house.
Neither of the two stairwells that link the floors meet codes. One is 28 inches wide, and the
head room varies; at one point it is only 5 feet. The lower level stairwell has access by two
doors at each end of the stairwell. The landing is 2 feet wide and the stairs themselves are 2
feet wide. The lower level ceiling height is 6 feet 4 inches. The beams in the room are at 6 feet.
He purchased the house with the intent to convert it to a single family dwelling. Because of the
ceiling height issue, any remodeling would require the house to become code compliant.
Raising the ceiling increases the lower level. There is no direct water frontage. The house has
been neglected in its upkeep. 50% of the current sq footage is outside the 10 ft setbacks. 46%
of the living space has that low ceiling level, so it is not to code. The framing is undersized.
The plan is to partially demolish the house, and rebuild it on current footprint. The building
envelope as determined by current ordinance would put the building closer to the water. There
is also a sewer easement on the property. There are three setbacks on this property. To
approve a variance condition 1 says that the land in question cannot provide a reasonable
return – in this case, the building cannot be renovated and brought into code compliance without
a variance. Condition 2 says the variance is due to unique characteristics of the property – this
house has a large footprint for the lot and the lot has three setbacks and an easement.
Condition 3 says the variance would improve the property - this is a prominent house in the
area, a house that sticks out, and it sticks out as an eyesore. Condition 4 says the hardship is
not a result of action taken by the owner or a prior owner – in this case, there is no action that
created the hardship; zoning went into effect after the building was built, and it cannot now be
renovated according to current zoning.
Mark Kneeler, architect, said that the intent of the elevations was to provide a project with
minimal impact. The idea was to modernize with minimal expansion. He presented the details
of the proposed changes to the house. The setbacks did not allow a lot of expansion; the whole
idea was to work within the setbacks. The proposed expansion of area is 8.8%; volume 14.9%.
Mr. McCarthy asked Mr. Farris for clarification as to why this required a variance.
Mr. Farris said that the issue was the height of the building. He said that they could only paper
and paint without the variance.
Mr. McCarthy reiterated that it was not the increase in interior volume that required the variance,
just the change in the roof height.
Mr. Farris agreed that this was correct.
Public comment period opened:
Ann Staples, a resident of the town landing area said that, with regards to the ceiling heights
this house is not unique. Every house in the area is like this. She said she doesn’t know what
the intent of the property is; will it be a rental? The proposed changes raise the roof by a foot;
she is concerned about the impact on the water view from her house. She was concerned
about the impact on the neighborhood; if this passes, others’ will want to raise their roofs.
Owners in the area are taxed heavily on their views. She asked the Board to think of the
neighborhood and the people who have lived there for 10-20 years, and the ramifications if this
is improved.
Jim McGowen of 8 Ayres Court stated that his property line is 18-30 inches from the proposed
building. He has serious reservations about the application. He observed that the existing
structure is almost 3500 sq ft on about .08 acre. Increasing the sq footage to 4000 will cause
hardship to abutters. He said that there is a math error in the plans, which does not reflect an
16
accurate final square footage. Also, he said that this application doesn’t take into account
previous additions to the house. Reading the ordinance as it applies to the cellar, the square
footage should not be included in the existing building; it should be included in the plan. He said
that one of the decks was also not included in the final square footage calculation. Compliance
with section 8.3e states that expansion will not impact water views of abutters. Mr. McGowen
said that this project will have a serious impact on water views from his house, in more than one
room. 6.11c states that no structure shall expand closer to the waterline. He observed that one
deck will come closer to the waterline. As far as meeting the reasonable return requirement,
Mr. McGowen felt that it was not met with this project. The lower level has had almost 100%
occupancy. Mr. McGowen felt that Mr. Wellin could always make the lower floor a cellar and
replace staircases with spiral stairs.
Mr. McGowen said that this property is not unique in the area, there are other properties in the
area that have multiple setbacks. This house is one of the biggest buildings in the area and it is
on one of the smallest lots. Making it bigger will only make it less in keeping with the
neighborhood. He was also concerned about the intention of Fishhouse Realty to rent the
property. He disagreed with Mr. Wellin’s statement about the hardship requirement. He said
that the hardship was caused by owners; the prior owner chose to create lower level living
space instead of leaving it a cellar. Mr. McGowen objects to this project.
Public hearing closed.
Mr. Meyer asked Mr. McGowen if he had any proof that the lower level was a cellar before it
was a living space.
Mr. McGowen said that Mrs.Tinker, the prior owner, told him it was converted for her father-inlaw
when he was ill.
Mr. Keeler asked for clarification on the plans for the building.
Mr. Wellin said that his intention is for a combination personal/investment/rental use. He said
that, according to what Mr. Farris told him, he could not do any renovations or improvements to
the house without bringing it to meet codes. In order to comply with code in the lower level the
ceiling needs to be raised, and then they can’t meet setbacks.
Mr. Keeler asked what level of demolition is planned.
Mr. Wellin said that the planned approach is some level of demolition, based on practicalities of
the framing. They don’t know how much demotion will be required. There is no intent to
remove or build outside of the foundation walls. Partial and/or full demolition is the same, as far
as zoning is concerned.
Mr. McCarthy observed that the variance is only necessary to bring the lower level into
compliance. If that was not in the picture, then no variance would be required for the
renovation.
Mr. Wellin said that the issue is the height of the lower level, but also replacing the stairs
between levels. The correction of these issues impacts the setbacks and therefore requires a
variance.
Mr. Thibodeau asked if he could change the foundation by lowering the level of the slab and
achieve what he was looking for that way.
Mr. Wellin said that there appears to be ledge. Also, once you remove foundation walls, you
have to go back to original setback levels.
Mr. Keeler asked about the upper floor plan: he asked for clarification that all the new space is
within the building envelope determined by the setbacks.
Mr. Wellin said that intent was to keep any expansion within the setbacks.
Mr. Keller asked Mr. Wellin what in the two upper floors required a variance.
Mr. Wellin said that existing staircase needs to be replaced; the creation of the new staircase
and removing old one has implications outside the setbacks. It is outside the building envelope.
17
Mr. Keeler asked if the new staircase is enlarging the space.
Mr. Farris said that no, it is built in the same footprint and volume.
Mr. Keeler said that he understood that the staircase has to move, but he didn’t see it as an
enlargement that would need a variance.
Mr. McCarthy felt that the primary issue here is undue hardship. He felt that the Board should
focus on the variance issues.
Mr. Keeler felt that the issue of reasonable return is not met; what he heard is that if you don’t
include the basement, you can still get a nice renovation of the building.
Mr. Meyer moved to approve the application for the variance and in the consideration of that
motion that the Board examine each condition separately.
Mr. Keeler seconded.
Condition 1: is the property capable of providing a reasonable return without a variance?
Mr. Keeler asked why the other levels can’t be renovated if this variance is not granted so that
the lower level cannot come to code.
Mr. Farris said that the other two levels could be renovated. The Town couldn’t allow renovation
on the lower level, only maintenance, because if the Town allowed the applicant to renovate
with a building permit, if a certificate of occupancy was issued, the Town would be certifying that
the renovation meets building, life safety and electrical codes. If someone were to die in a fire
on that level, the Town would have liability.
Mr. Keeler observed that the applicant could rehab the main floor and the upper floor.
Mr. Farris said yes. To do the expansions on those floors would be a 6.2b expansion.
Mr. Meyer asked if the applicant would have a problem with 6.2b due to the lot coverage.
Mr. Farris said that no, he would be expanding within the current building footprint.
Mr. Thibodeau asked if the applicant could still use the lower level without bringing it into code.
Mr. Farris said that the Town would only issue a certificate of occupancy if it was a whole
renovation. They would issue a certificate of completion, with specific references to renovations
in question, if it was a partial renovation.
Mr. McCarthy observed that Section 8.4 b 1 is often misleading; reasonable return is essentially
defined to mean substantial value of property. He doesn’t think that this application rises to that
level.
Mr. Keeler thought that the applicant could do a nice renovation without the variance.
The Board voted on whether the requirement of 8.4 b 1 is met, and the land in question cannot
yield a reasonable return if the variance is not granted. The vote was none in favor and 4
against.
Condition 2: Undue hardship. The need for variance is due to unique circumstances of the
property and not general conditions of the neighborhood.
Mr. Keeler asked Mr. Farris to clarify that, if this property did not have a slim building envelope,
enabling the enlargement to be within a building envelope, the property would not require a
variance.
Mr. Farris said that, yes, if it met the nonconforming lot 10 foot setbacks all the way around, it
could be done under Section 6.9, a tear down and rebuild.
Mr. Thibodeau said that, due to testimony heard tonight that there are conditions in the
neighborhood that are similar to these conditions, low ceilings etc., he felt the Board hadn’t seen
enough information tonight on this issue.
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The Board voted on whether there was undue hardship on the property due to the unique
circumstances of the property, which necessitated the need for the variance.
Mr. Thibodeau felt that the Board did not have enough information to vote on this item tonight.
He felt that he would therefore have to default to a no vote.
Mr. Meyer, Mr. McCarthy and Mr. Keeler would vote yes.
Condition 3: granting a variance would not alter the essential character of the locality
Mr. McCarthy wondered what constitutes the locality.
Mr. Thibodeau said that, on looking at this design and the other houses in the area, he didn’t
think granting the variance would alter the essential character.
The Board voted 4-0 that granting the variance would not alter the essential character of the
locality was met.
Condition 4: Hardship is not the result of an action of the current owner or a prior owner.
Mr. McCarthy observed that it seemed that someone at some point improved a basement and
has therefore created an issue today with code compliance.
Mr. Thibodeau observed that there are several issues here, there are the setbacks, code
compliance, roof lines, decks, etc.
Mr. Wellen asked if, since the action of that owner predated current zoning, if they did not
violate zoning as it was, how does it apply?
Mr. McCarthy said that the ordinance does not cover that.
Mr. Wellin said that one could argue that zoning created the hardship, not the owner. He read
the ordinance to mean that the owner knowingly creates the hardship.
Mr. Keeler said that if the ceiling was created before there was anything to comply with, then the
action did not create the hardship.
Mr. Meyer said that he read this condition to mean that a choice that someone made ultimately
resulted in a hardship.
Mr. Thibodeau observed that under a strict interpretation of that, you could never meet this
condition.
Mr. McCarthy asked if there was any record as to when that basement was converted.
Mr. Farris guessed that it was finished off in the late 1970’s. There was not strict adherence to
building codes at that time.
The Board voted 2-2 that the hardship is the result of action of the current or a previous owner.
The variance application failed because all conditions were not met.
Meeting adjourned: 1:15 am.
Respectfully submitted by:
Melissa Tryon
Recording Secretary
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