SOUTH BERWICK ZONING BOARD OF APPEALS
PUBLIC HEARING
MAY 1, 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), Kevin DeSchuytner, Bonnie Gould, Alan Schalk and Joseph Rousselle (Code Enforcement Officer).
QUORUM
There was a quorum with 4 voting members.
MINUTES FROM PREVIOUS MEETING
John Kareckas motioned the Justification of Variance should follow Findings of Fact for minutes of Case #04-03 on February 27, 2003. John moved to accept, Alan Schalk seconded, all were in favor. Motion accepted as amended.
John Kareckas motioned to accept minutes from Case #03-03 on February 13, 2003. Kevin DeSchuytner seconded, all were in favor. Motion passed.
NEW BUSINESS
Case #05-03
Russell Tarason; 77 Norton Street
Map 31 Lot 133; Variance Appeal
JURISDICTION
The Zoning Board of Appeals has jurisdiction to hear variance appeals pursuant to Section 140-76. Subsection B(2) of the South Berwick Zoning Ordinance.
DETERMINATION OF STANDING
The appellant is J. Russell Tarason, owner of property known as Map 31 Lot 133 located at 77 Norton Street. Mr. Tarason was represented by Bill Dale from Jensen, Baird, Gardner & Henry Law Firm in Portland, Maine.
OTHER PARTIES TO THE ACTION
Jim Noel, the former Code Enforcement Officer of the Town of South Berwick was in attendance.
TESTIMONY, QUESTIONING AND DISCUSSION OF EVIDENCE
Mr. Dale explained he and Mr. Tarason were before the Board in February for an Administrative Appeal. He then passed out exhibits A#1, 10 pages including the variance application and previous permits, and A#2, 5 pages of photographs. Mr. Dale went on to explain they were here to prove compliance and determine whether the property in question may be lawfully used for 2 or 3 units. Mr. Dale made reference to Mr. Tarason speaking with former Code Enforcement Officer, Jim Noel. Mr. Tarason’s issue is he met with CEO, Jim Noel, and had gotten plumbing permits for 3 apartments. Mr. Dale then went on to ask questions of Jim Noel. Mr. Dale asked if he recalled Mr. Tarason making application. Mr. Noel answered not vividly, but does remember a rough-in inspection of the plumbing.
Mr. Dale asked if he recalled discussing the number of units allowed at the property. Mr. Noel answered specifically he didn’t remember discussing 3 units. Mr. Dale asked if while doing the plumbing inspection, would he have gone in each of the units. Mr. Noel said he didn’t think there was any sheetrock or walls so he didn’t think you could differentiate at the time. Mr. Tarason then spoke. He mentioned when he went in to talk with Mr. Noel he had floor plans, together he and Mr. Noel went through and counted up fixtures, discussed sillcocks and the form clearly showed there were 3 units. He then showed Mr. Noel the floor plans. Mr. Noel said no that it didn’t look familiar. Mr. Tarason then said Jim Noel determined the property was grandfathered for 3 units and that is why he issued the permits. Mr. Noel responded he was unclear because Mr. Tarason’s property was vacant for a couple of
years. He mentioned he may have told Mr. Tarason that but he did not recollect. Mr. Tarason and Mr. Noel then discussed the plumbing permit being marked “mixed” under “Type of Structure to Be Served”. There was some question to this. Mr. Noel stated he couldn’t tell what Mr. Tarason had in mind by marking “mixed”, if the permit had been issued for a multi-family it would have been marked that way. Mr. Dale went on to discuss each of the 4 criteria for granting a variance. 1) The land in question cannot yield a reasonable return unless the variance is granted: Mr. Dale stated Mr. Tarason spent over $100,000 in the property, making it clear all along it was 3 units and the Town is unfairly depriving him of use. 2) The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood: Mr. Dale stated all investments were
done with the full knowledge of the CEO’s. 3) The granting of a variance will not alter the essential character of the locality: Mr. Dale stated 11 Norton St., 40 & 50 Norton St., and properties owned by the Housing Partnership all have many units. 4) The hardship is not the result of action taken by the appellant or a prior owner: Mr. Dale stated Mr. Tarason was upfront through this process at all times and made it clear he had 3 units.
The Board members asked questions of Jim Noel concerning plumbing permits, fixtures and fees. There was also a discussion on why the plumbing permit was marked as mixed use, which no one seemed to know the answer to. The Board members each asked Mr. Tarason questions also.
Joseph Rousselle, the Code Enforcement Officer, offered testimony and asked questions of Mr. Tarason. Mr. Rousselle mentioned the minutes of a Planning Board meeting on March 7, 2000, labeled CEO #3, where it stated Mr. Tarason had submitted a request for re-zoning for his property located at 77 Norton Street. If the building remained in the B2 Zone, Mr. Tarason would be allowed only 2 units. Mr. Tarason’s request was denied.
Mr. Dale closed with saying Mr. Tarason spent over $100,000 on reliance of conversations with Mr. Noel and has met his burden, therefore 3 apartments should be allowed.
Close public hearing at 9:25 p.m.
DELIBERATION
The Board discussed the evidence and testimony presented to them.
FINDINGS OF FACT
1) Case #05-03.
2) Appellant is J. Russell Tarason, owner of property.
3) Property address is 77 Norton Street, South Berwick, Maine.
4) Property is referenced as Map 31 Lot 133 on South Berwick assessor’s map.
5) Deed reference is Book 9367, Page 176, York County Registry of Deeds.
6) Mr. Tarason purchased property approximately February, 1999.
7) Property is located in the B2 Zone.
8) Mr. Tarason is represented by Attorney William Dale.
9) Mr. Tarason was present at the meeting.
10) Roll call – there was no conflict or bias.
11) Former CEO and licensed plumbing inspector, Jim Noel, was present and offered testimony.
12) No abutters or other persons with standing were present.
13) The Board has Jurisdiction based on the South Berwick Zoning Ordinance Section 140-76. B(2).
14) The appellant provided 3 exhibits –
A#1 – Application, attachment, and copies of permits
A#2 – 5 photographs
A#3 – 3 pages of floor plans
15) Code Enforcement Officer, Joe Rousselle, was present, made comments and presented exhibits –
CEO#1 – letter dated 6/1/93 to Mr. Ham and letter dated 5/25/93 from
Christopher Vaniotis
CEO#2 – letter dated 10/16/02 from Town Manager to CEO and letter dated 10/22/02 from CEO to Mr. Tarason
CEO#3 – Planning Board minutes dated 3/7/00
16) Mr. Tarason is seeking a variance for continued use of property at 77 Norton Street as a 3 family unit.
17) Page 159, Section 140-76. B(3) of the South Berwick Zoning Ordinance, states that a variance is authorized only from the dimensional requirements of Table B & C of this chapter.
The Board questioned if they had the power to hear this case because they could not get the information from Table B & C.
Kevin DeSchuytner motioned to adjourn until counseled on the Boards power to hear a variance of Case #05-03. Bonnie Gould seconded motion. All in favor. Motion passed.
John Kareckas motioned to recess. Kevin DeSchuytner seconded. All in favor. Motion passed.
Meeting ends 10:10
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