SOUTH BERWICK ZONING BOARD OF APPEALS
PUBLIC HEARING
FEBRUARY 13, 2003
7:00 P.M.
CALL TO ORDER
John Kareckas called the meeting to order at 7:05 p.m.
ROLL CALL
John Kareckas (Chairman), David Kenny, Bonnie Gould, Alan Schalk and Joseph Rousselle (Code Enforcement Officer).
QUORUM
There was a quorum with 4 voting members. There were no conflicts of interest.
MINUTES OF PREVIOUS MEETING
Bonnie Gould motioned to accept the minutes of the previous meeting. Alan Schalk seconded motion. John Kareckas motioned to strike variance request under new business and replace with administrative appeal. All were in favor of amended minutes.
NEW BUSINESS
Case #03-03
Russell Tarason; 77 Norton Street
Map 31 Lot 133; Administrative Appeal
JURISDICTION
The Zoning Board of Appeals has jurisdiction pursuant to Section 140-76. B1 (acknowledge typo on Subsection D and refer to Subsection C) of the South Berwick Zoning Ordinance. Russell Tarason was found to be in violation of the Town Zoning Ordinance by the Code Enforcement Officer. Mr. Tarason is appealing the Code Enforcement Officer’s decision.
DETERMINATION OF STANDING
The appellant is Russell Tarason, owner of property known as Map 31 Lot 133, located at 77 Norton Street. Attorney William Dale from Portland, ME is representing Mr. Tarason.
TESTIMONY, QUESTIONING AND DISCUSSION OF EVIDENCE
Mr. Tarason received a letter from the Code Enforcement Officer dated October 22, 2002, labeled A #1, stating his property located at 77 Norton Street was in violation of Town Zoning. Mr. Dale stated the issue before the Board is whether or not the building is zoned for a 2 or 3 unit apartment. Mr. Dale is challenging the Code Enforcement Officer’s decision that Russell Tarason’s property can only be used as a 2-unit residence and not a 3-unit. Mr. Dale cited a Maine Supreme Court case, Shackford & Gooch, Inc. vs. the Town of Kennebunk. Mr. Tarason purchased the property in 1999 for $36,000 and has put over $100,000 into the property. Mr. Dale stated Mr. Tarason made it clear to the Town he planned on using it for 3 units. The Code Enforcement Officer at the time was Jim
Noel, who Mr. Tarason received plumbing permits from on 01/11/00 showing 3 of each fixture, labeled A #2. The plumbing fixtures get rough plumbed and Jim Noel inspected these with Mr. Tarason. On 07/12/00 Mr. Tarason met with then CEO Jim Wolcott for a building permit for a second floor deck and first floor handicap access, labeled A #3. Mr. Dale also stated the property has been assessed as a 3-unit and Mr. Tarason has been paying taxes accordingly. The site is adjacent to a fair amount of development from the Norton Street Revitalization project and there are buildings with multi-family units. Mr. Dale stated the essence of the appeal is that it was Mr. Tarason’s understanding he could have 3 units and showing all permits he obtained will prove this. Mr. Dale and Mr. Tarason feel it is grossly unfair and the CEO’s decision should be overturned.
Joseph Rousselle, CEO, offered his testimony. Mr. Rousselle stated the plumbing permit dated 01/11/00, labeled A#2, is issued by the number of fixtures, it does not designate the number of units. The Building Permit Application dated 07/12/00 labeled A#3, does not clarify the number of apartments and is also marked as mixed use. The building permit to demolish a shed, labeled A#4, does not state the number of units once again. The lot in question is 6,800 sq. ft. The B2 Zone requires a minimum of 10,000 sq. ft. per Sec. 140-46. A.1-2 of the Zoning Ordinance. Even with a major site plan review, which Mr. Tarason did not go through, you still have to meet the criteria for zoning for that area. The lot next to the appellant was done in 1988 which was acceptable back then. Mr.
Rousselle then explained some history of the property. On 04/28/93 the owners of the property at the time went before the Zoning Board of Appeals for an administrative appeal. The Board concluded it was a duplex. Then on 03/07/00, a Planning Board meeting was held. Mr. Tarason had submitted a request for rezoning because the density requirement in B2 prohibited him from installing three units in his building. If the building remained in the B2 zone he would only be allowed two units. His request was denied.
Exhibits offered by the Code Enforcement Officer –
CEO #1 – ZBA decision dated 04/28/93
CEO #2 – Letter dated 06/01/93 from then CEO stating the duplex was a non-conforming
building.
CEO #3 – Planning Board minutes dated 03/07/00 mentioning request for rezoning.
CEO #4 – Planning Board minutes dated 08/03/99 mentioning correspondence from
Russell Tarason requesting a zone change.
CEO #5 – Letter dated 01/10/03 from Mr. Rousselle to Mr. Tarason.
Close public hearing at 9:25 p.m.
DELIBERATION
The Board discussed the evidence and testimony presented to them.
FINDINGS OF FACT
1) Case #03-03, Map 31 Lot 133.
2) Appellant is Russell Tarason, owner of property.
3) Deed reference is Book 9367, Page 176.
4) Address is 77 Norton Street, South Berwick, Maine.
5) Mr. Tarason is represented by William Dale.
6) Exhibits –
A #1 – Application and attachment, letters dated 10/22/02, 10/29/02 and 11/01/02
A #2 – Plumbing application and receipt – 5 pages
A #3 – Building permit application – 2 pages
A #4 – Receipt and building permit application to demolish shed – 4 pages
A #5 – Letter from Mr. Tarason with attached application to appeal dated 04/05/00 - 3 pages
7) There were no abutters present or anyone with standing.
8) Application is dated 01/21/03.
9) There was an ongoing discussion between applicant and members of the Town
through the month of December which culminated in a meeting of 01/07/03.
10) Letter dated 01/08/03 labeled A#6, from Mr. Tarason to Joe Rousselle referencing 01/07/03 letter.
11) Letter dated 01/10/03 labeled CEO#5, from Joe Rousselle to Mr. Tarason, reaffirms position he is in violation.
12) The Board finds the appellant is timely by the letter dated 01/08/03.
13) Appellant purchased property in 1999.
14) Plumbing permit was issued on 01/11/00 by Jim Noel.
15) Case of Shakford and Gooch vs. Town of Kennebunk was cited by Mr. Dale as a precedent in this matter.
16) Appellant provided photographs of subject property.
17) Reference to existing houses in the area owned by Norton Street Neighborhood Revitalization Limited Partnership whose uses are multi-family.
18) Easterly adjacent property on Norton Street has 4 dwelling units.
19) The property was developed in 1988 and was changed in 1994 or thereabouts.
20) Page 180 of the South Berwick Zoning Ordinance dated March 2001, Table A requires a Major Site Plan Review.
21) Subject property has approximately 6900 square feet.
22) The property is a non-conforming lot.
23) The appellant testified he accompanied the then CEO Jim Noel on or about 01/11/00 for a review of the rough-in plumbing on subject property.
24) The Code Enforcement Officer offered testimony in reference to A#2. The plumbing permit is based on fixtures not units. A#3 does not specify the number of apartments. A#4 is for the demolition of a shed and does not reference the number of apartments.
25) Taxes do not have an impact on zoning requirements.
26) B2 Zone has a minimum of 10,000 square feet per unit. Sec. 140-46. A1 and A3.
27) On 03/07/00 there was a Planning Board hearing on subject property with respect to the number of units allowed for subject property.
28) There is no correspondence that supports the floor plans, a portion of A#2, are part of the original permit.
29) On or about 10/20/02 the Code Enforcement Officer knew about the 3 unit occupancy and that initiated the letter of 10/22/02.
30) Appellant asserts that the Town through Mr. Noel knew of unit density and in some fashion gave approval for the use.
31) Mr. Tarason expressed concern over negative bias by sitting Town Manager in 1999.
32) Based on the 03/07/00 Planning Board minutes the appellant testified and the record reflects he submitted a request in August of 1999 to have zoning changed from B2 to B1.
33) A hearing was held on 03/07/00 that addressed zoning.
34) The appellant testified he was present at that hearing and further testified that the purpose of his August 1999 zoning request was to relocate an outbuilding. The minutes of the 03/07/00 meeting reflect no discussion of the moving of outbuildings. They infer they were discussing whether the units were allowed.
35) There was no action for application and letter dated 04/05/00. There were no fees paid and no abutter notifications.
David Kenny motioned to accept Findings of Fact. Alan Schalk seconded motion. All were in favor. Motion carried.
CONCLUSION
Alan Schalk motioned that facts as presented do not support a reversal of the Code Enforcement Officer’s decision.
David Kenny seconded motion. All were in favor. Motion carried.
DECISION
Based on Findings of Fact and Conclusion, the Zoning Board of Appeals upholds the opinion of the CEO as outlined in
his correspondence of 10/22/02, 11/01/02 and 1/10/03.
John Kareckas motioned to accept the decision. Alan Schalk seconded motion. All were in favor. Motion carried.
OTHER
There was unanimous consent to continue Case #02-03; August Realty. They must resubmit amended application by
March 13, 2003.
John Kareckas motioned that based on the letter dated 01/31/03 from Ainsworth & Thelin, P.A., referencing
Case #01-03; Huber, the case is closed. Alan Schalk seconded motion. All were in favor. Motion carried.
Alan Schalk motioned to adjourn the meeting. Bonnie Gould seconded motion. All were in favor. Meeting adjourned
at 11:10.
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