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 ZBA Minutes 09/29/2016

Public Hearing
Date: 9-29-2016
Present: Peter Grace, John Klossner, Smilie Gregg Rogers, Frank Jillson and Joseph Rousselle, CEO
Absent – Mark Lawrence
Mr. Grace called the meeting to order at 7:00 p.m.
Motion to approve minutes of 12-9-2015 by Mr. Rogers, second by Mr. Klossner VOTE: 4-0
Tim DeCoteau, Appellant
Anya Wittenborg, 154 Emerys Bridge Rd
Mike Fernald, Fernwood (Builder)
#1:       Variance request for Map 8 Lot 59A (Owner: Anya Wittenborg) – request an administrative appeal & a variance for a side setback of 10’ from the property line.
A1:      Application for Variance or Appeal to ZBA (9/13/16)
A2:      Warranty Deed (6/29/15)
A3:      Property Plot Plan – Survey Prepared for Tobin Gray (4/1/92)
A4:      Agent Authorization Form (8/2/16)
A5:      Building Plans (A-1)
A6:      Building Plans (A-2)
A7:      Building Plans (A-3)
A8:      Building Plans (A-4)
A9:      Building Plans (A-5)
A10:    Building Plans (A-6)
A11:    Building Plans (A-7)
A12:    Property Plot Plan
A13:    Plumbing Permit for garage apartment
A14:    Photo of Property
C1:       Denial letter to applicant (9/9/16)
C2:       Email from MMA Legal Department (8/29/16)
C3:       List of Abutters
C4:       Building Permit #16-081
Mr. DeCoteau spoke to the opinion by Maine Municipal Association, he does not feel that the garage is not an accessory structure because it was not approved by PB, the house is less than 2,000 sq. ft. and the apartment can’t exceed 30% of the square footage of the house (and in this case the apartment over the garage does exceed the 30%), for several reasons it does not meet the requirements for an accessory structure.
Mr. DeCoteau presented a plumbing permit for the apartment (marked as A13) with sink, wash basin, toilet and shower.  Received inspection by CEO.  Mr. DeCoteau feels this is critical aspect and it was inspected and was clearly a dwelling above the garage and that is a principal structure.
Applicant wants to remodel and make improvements and would like to have garage connected to house for security reasons.  She also wants to make corrections to apartment (ex: stairs don’t meet code requirements).
Mr. DeCoteau believes that ordinance on Non-conforming Structures allows you connect a non-conforming structure to a conforming structure.
Mr. Grace states that plumbing permit clearly calls the structure a garage not an apartment.  Mr. Rousselle says that with today’s definition, it is an illegal apartment above the garage.
Ms. Wittenborg stated that the apartment has been lived in/rented for quite some time now.
Mr. Rousselle believes that when you connect a non-conforming structure to a conforming structure it becomes a principle building and you must meet the setbacks of the districts.  If the apartment does not meet life safety code how is it occupied?  It should not be living there if that is the case.  Also, plumbing goes from apartment through garage into septic, is it rated for that?  Is the septic system inadequate and subject to fail? 
Mr. Rousselle stated that he reviewed the assessing cards in the file and the only reference to the apartment was on the tax card on 8/12/15 and then on 8/21/15 for some reason it was removed and is no longer there.
No building permit for the garage is on file, the only permit they have is for the plumbing.
Mr. Rogers asked Mr. Rousselle to address the applicant’s point that a plumbing permit implies a dwelling structure.  He feels that it is an accessory structure, because it is not attached to the main building.  Another reason that it is an illegal apartment is because it does not have enough acreage to have 2 dwelling units on a lot, you need 2 acre minimum in that zone and that parcel is 2.92 acres.
All parties are in agreement that for many reasons this is a non-conforming structure.
Mr. Grace closed the meeting to the public at 8:11 p.m.
The ZBA decided to discuss the administrative appeal first.
Mr. Grace asked if the other members agreed that the issuance of the plumbing permit made the garage a dwelling unit. 
Mr. Jillson states that he agrees it is an apartment, legal or illegal it is an apartment, being an apartment less than 25 ft. from the line becomes non-conforming and the addition conforms until you attach it to the house.  The house will be a single structure and it will be non-conforming that is 10 ft. from the property line.
Mr. Grace opened the Public Hearing back up for more comments from Mr. DeCoteau. 
Mr. DeCoteau spoke about non-conforming use.  He said that non-conforming use is a use that is not permitted in the zone and dwelling units are allowed in the zone, if there are too many dwelling units on the lot, you have a non-conforming lot. Right now we have one conforming structure and one non-conforming structure on the lot, if we combine them all, we have one non-conforming structure.
Mr. Grace closed the Public Hearing again at 8:45 p.m.
All ZBA members agreed that the garage is a non-conforming dwelling.
Mr. Rogers asked if connecting the two buildings will affect the setback requirements.  Mr. Jillson said yes it does, you need a 25 ft. setback for a dwelling.
Mr. Grace stated that if you did connect it, the appellant is admitting that the primary dwelling does not have enough square footage for an accessory apartment.
Mr. Jillson asked if the ZBA agreed with the decision made by Joe Rousselle.
  • C2:  Email from MMA Legal Department (8/29/16).  Addition of attached breezeway would transform two conforming structures into one non-conforming structure, which would violate the ordinance.
  • The ZBA has found that the other structure on the property is a non-conforming structure.  It does not meet lot setbacks for separate dwelling or the minimum lot size requirement for two dwellings.
  • Building was permitted to be built as a garage by the building and the plumbing permit.
  • At some point someone turned it into an apartment.
Mr. Jillson made a motion to deny the administrative appeal, second by Mr. Klossner.  VOTE: 4-0
Mr. Grace opened up the Public Hearing again to discuss the Variance Request at 9:20 p.m.
Mr. DeCoteau states that safety is a concern and they feel it is a reasonable use to connect these two building.
The existing garage is 10 ft. from the lot line and the connector will meet all setback requirements and the uses will remain residential.
The current owner was not aware that there would be any problem to connect buildings.  This has the possibility to seriously affect Ms. Wittenborgs retirement.
Mr. Rousselle addressed the variance request.  It is his opinion that it is an accessory structure and when you attach them, they are required to meet setbacks for the district and that is what he based his decision on. 
Appellant is asking for a variance to connect the structures currently a permit has been issued to build the connector either 3 inches to 3 ft. away.
Mr. Rousselle stated that by putting this addition on with a variance, it will make the lot conforming based on the variance and at the same time by expanding the breezeway, it brings the total living space above the 2,000 sq. ft. and that apartment now becomes conforming because it is attached to the principal building with variance of 15 ft. reduction of setback requirement.
Ms. Wittenborg would proceed to Planning Board and ask for accessory apartment to address safety codes that exist and to make the apartment legal and safe.
Mr. Grace closed the Public Hearing at 9:45 pm to discuss variance request.
  1. The land in question cannot yield a reasonable return unless the variance is granted
  • The Board agreed that this is true.
  • Motion by Mr. Rogers second by Mr. Jillson VOTE: 4-0
  1. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood
  • The Board agreed that this is true.
  • Motion by Mr. Rogers second by Mr. Jillson  VOTE: 4-0
  1. The granting of a variance will not alter the essential character of the locality
  • The Board agreed that this is true
  • Motion by Mr. Rogers second by Mr. Jillson  VOTE: 4-0
  1. The hardship is not the result of action taken by the appellant or a prior owner
  • The Board agreed that this is true.
  • Motion by Mr. Rogers second by Mr. Jillson  VOTE: 4-0
Mr. Rogers made a motion to grant a variance of 15 ft., second by Mr. Jillson.  VOTE: 4-0
  • Applicant is Tim DeCoteau representing Anya Wittenborg
  • Property is 154 Emerys Bridge Rd in South Berwick
  • Testimony from Tim explained non-conforming use
  • Granting the variance request would make property and structures conforming
Mr. Rogers made a motion to accept the Findings of Facts, second by Mr. Jillson.  VOTE: 4-0
Motion by Mr. Rogers second by Mr. Jillson to adjourn the Meeting at 10:07 p.m.  VOTE: 4-0
Attested by: __________________________________
Date: _______________________________________