SOUTH BERWICK ZONING BOARD OF APPEALS
PUBLIC HEARING
JUNE 30, 2005
7:00 PM
ROLL CALL
Kevin deSchuytner, Bonnie Gould, Michael Williams, Alan Schalk and Joseph Rousselle (Code Enforcement Officer).
CALL TO ORDER
Kevin deSchuytner called the meeting to order at 7:00 pm.
QUORUM
There was a quorum with 4 voting members. There was no conflict of interest.
NEW BUSINESS
Case #02-05
Gerald and Carol Poirier; 150 York Woods Rd.
Map 2 Lot 25; 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 appellants are Gerald and Carol Poirier, owners of property known as Map 2 Lot 25, located at 150 York Woods Road. The Poirier’s are representing themselves.
OTHER PARTIES TO THE ACTION
Abutters in attendance included Mrs. Josephine Varney Robbins, owner of Map 2 Lot 11, Charles Poirier, owner of Map 2 Lot 25E, Andy and Jennifer Croteau, owners of Map 2 Lot 25B, John and Paula Dougherty, owners of Map 2 Lot 25A, Deirdre Donchian Colby, owner of Map 2 Lot 32 and Jason and Adam Poirier.
TESTIMONY, QUESTIONING AND DISCUSSION OF EVIDENCE
Mr. and Mrs. Poirier stated their case. They bought 35 plus or minus acres 29 years ago. They thought of giving their children a start in the community they grew up in. However,
in the course of the 29 years ordinances have changed. They have spent the past 20 years working with Tom Harmon of Civil Consultants to stay within the zoning requirements. The current zoning ordinance requires a town approved road with sidewalks which would place too great a financial burden on them. To build a road the cost would be over $150 a foot and that puts the affordability out of reach for their sons to build. The circumstances which make this property unique are that the dirt road right of way is the only access to this property and is maintained by the people who use it. It has been used in this manner for approximately 20 years. The essential character of the location would remain the same. During their 29 years of ownership they have reconfigured lot sizes to remain
in compliance with current rules and regulations.
Joe Rousselle, the Code Enforcement Officer then offered testimony. He denied the applications because the Poirier’s are looking to build 2 houses on a private road and do not meet the access standards.
Kevin deSchuytner mentioned he was unclear if the Board could hear the case based on Appendix A of the Zoning Ordinance. The Board had a lengthy discussion on this. Bonnie Gould motioned that under Section 140-70. H (3) the Board has the jurisdiction to grant a variance from the standards of Appendix A. Alan Schalk seconded. All in favor. Motion PASSED.
Josephine Varney Robbins then gave testimony. She spoke about her experience of other abutters applying for a variance and how it was impossible to get building permits. She stated she sold her land 3 times and all 3 times it came back to her because no one was able to obtain a building permit. She would love to see the Poirier’s get the variance because she feels the ordinance is very unfair. She stated she pays taxes which she thought paid for roads, not to make the people build them then have the Town take them over.
Charles Poirier then gave testimony. He stated this land has been in the family for 30 years and they are not out to make a profit. He feels this ordinance has penalized long term residents.
Jennifer Croteau then questioned why they can’t put in a gravel road. The two brothers already live on the road so it would not make for any more traffic then there already is.
Adam Poirier questioned the purpose of having a paved road. Mr. Rousselle stated this is the standard and also the need for emergency vehicles to pass.
Deirdre Donchian Colby then gave testimony. She mentioned other questionable projects in the area. She also mentioned the environmental havoc created by 4 wheelers and snowmobiles tearing up the trails. She stated that by paving this road it would be an open invitation for more abuse.
Kevin deSchuytner then read into record a letter from Robert Kay, an abutter not in attendance, who was asking the Board not grant the variance.
Close public hearing at 8:27 pm.
DELIBERATION
The Board discussed the evidence and testimony presented to them.
Bonnie Gould motioned to reopen the public hearing for the sole purpose of accepting the plot plan from Civil Consultants. Kevin deSchuytner seconded. All in favor. Motion PASSED.
Bonnie Gould motioned to close public hearing. Alan Schalk seconded. All in favor. Motion PASSED.
FINDINGS OF FACT
Bonnie Gould motioned under Section 140-70. H (3) the Board has jurisdiction to grant a variance from standards of Appendix A. Alan Schalk seconded. All in favor. Motion PASSED.
1) Case #02-05, Map 2 Lot 25
2) Appellants are Gerald and Carol Poirier, owners of property.
3) Deed reference is Book 2136, Page 599.
4) Address is 150 York Woods Road, South Berwick, Maine.
5) Exhibits –
A #1 – Request for variance application
A #2 – Adam Poirier’s packet/building permit application
A #3 – Jason Poirier’s packet/building permit application
A #4 – Letter from Gerald and Carol Poirier
A #5 – Plan prepared by Civil Consultants
O #1 – Letter from Mr. Robert Kay
6) The Code Enforcement Officer denied application because the property didn’t
meet road frontage requirements.
7) Motor vehicle access is provided to the existing 6 lots by a gravel way.
8) Both lots meet all dimensional requirements of the R-3 zone with the exception of road frontage.
9) Each of the lots in question has at least 200 feet of frontage on the mentioned gravel way.
10) Gravel way is 50 feet wide when referencing A #5.
11) Proposal for 2 more lots on gravel way.
12) Based upon testimony the applicants have spent the past 20 years trying to stay within zoning requirements.
Bonnie Gould motioned to accept all findings of fact at once. Alan Schalk seconded. All in favor. Motion PASSED.
JUSTIFICATION OF VARIANCE
1) The land in question cannot yield a reasonable return unless the variance is granted.
Alan Schalk motioned the land in question cannot yield a reasonable return unless the variance is granted. Bonnie Gould seconded. 3 in favor – 1 opposed. Motion PASSED
3 – 1.
2) The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood.
Alan Schalk motioned the need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood. Kevin deSchuytner seconded. All in favor. Motion PASSED 4 – 0.
3) The granting of a variance will not alter the essential character of the locality.
Bonnie Gould motioned the granting of a variance will not alter the essential character of the locality. Alan Schalk seconded. All in favor. Motion PASSED 4 – 0.
4) The hardship is not the result of action taken by the appellant or a prior owner.
Alan Schalk motioned the hardship is not the result of action taken by the appellant or a prior owner. Bonnie Gould seconded. All in favor. Motion PASSED 4 – 0.
Bonnie Gould motioned to accept Findings of Fact. Kevin deSchuytner seconded. All in favor. Motion PASSED.
CONCLUSION
The conclusion on the first criteria was reached based on Greenburg vs. Dibiase (14).
The conclusion on the fourth criteria was reached based on Twig vs. Town of Kennebunk (17) and Rocheleau vs. Town of Greene (18).
DECISION
Bonnie Gould motioned based upon the Findings of Fact the Board concludes as matter of law applicants have met burden of proof under Section. 140-76. B (2) and therefore the Board grants the variance. Alan Schalk seconded. All in favor. Motion PASSED 4 -0.
MINUTES OF PREVIOUS MEETING
Kevin deSchuytner motioned to accept minutes of previous meeting. Michael Williams seconded. All in favor. Motion PASSED.
Michael Williams motioned to adjourn. Bonnie Gould seconded. All in favor. Motion PASSED. Meeting adjourned at 10:45 pm.
| 
