Board of Appeals Meeting ~ January 22, 2024

2024-01-22 · Board of Appeals · 1:38:18 · watch on YouTube →

The Board of Appeals met on January 22, 2024. It began by reorganising: Alan Plummer, the code enforcement officer, opened the meeting and announced that Barbara Schneider had resigned as chair, Paul First was elected chair, and the alternate was seated as a voting member for the evening. The rest of the meeting was a single appeal, brought by Jamie (surname not clear in the recording) with attorney Larry Zuckerman, against the code enforcement officer's refusal of a building permit on a 2.08-acre lot she was buying from her sister, Kelly Burnham. The officer had written on March 8 that the lot was buildable; the resource protection mapping adopted at the April 1 town meeting then placed almost all of it in the Resource Protection District, leaving less than the contiguous 40,000 square feet of buildable area the ordinance requires. The board discussed whether to treat the case as equitable estoppel or as a variance, concluded that the ordinance provides only an administrative appeal or a variance, worked through the dimensional variance criteria, and voted to grant a variance from the minimum buildable area requirement.

No written minutes could be matched to this meeting. The transcript records that the speaker changed but never who was speaking, so any name attached to a statement below is inferred from context and is marked (?).

What was discussed

1. 12:25
   Call to order and roll call

   Alan Plummer, the code enforcement officer, called the meeting to order and took the roll: Neil Barry, Paul First, Terry (surname not clear in the recording), Milton Simon, and Byron Philbrook (?) as alternate. He told the public that Barbara Schneider had resigned as chair of the appeals board, effective now.

2. 12:25
   Election of chair, seating of the alternate, and minutes

   A motion was made to elect Paul First as board chair; he said he was willing to serve for now and might later ask another member to take over. The board then moved to allow the alternate to serve as a regular member for the evening in Barbara Schneider's absence, and took up the minutes of the November 21 meeting.

3. 17:44
   Code enforcement officer's account of the determination and the denial

   The code enforcement officer said Jamie and Kelly Burnham came to him for a zoning determination because the bank holding Kelly Burnham's mortgage required a letter before it would release the parcel, and that on March 8 he wrote that a house could be built there. When Jamie returned after the town meeting for a building permit, the resource protection mapping had changed, and he denied the permit because the ordinance requires a 40,000 square foot building envelope outside the Resource Protection District. He said he must apply the ordinance as it stands on the day he is asked.

4. 23:08
   Appellant's statement: equitable estoppel and the sequence of events

   Larry Zuckerman (?) said Jamie had a survey and a septic design done in February, obtained the March 8 letter, applied to the bank for a mortgage release and made a first payment of $6,500 in March 2023, all before the ordinance changed. He said the bank gave its release on June 30 and the deed was dated August 14, and argued she held an equitable interest in the 2.08 acres from March.

5. 28:16
   Auburn case cited

   Zuckerman (?) described a case from the city of Auburn in which the state's highest court held that a city could not enforce part of its zoning ordinance against people who had relied on what the code enforcement officer told them and spent money as a result. He asked the board not to enforce the new zoning against Jamie, but to apply the ordinance as it stood before April 1.

6. 33:29
   Variance criteria raised; questions on chronology

   Zuckerman (?) said the case also satisfies the variance requirements, since setbacks, septic and well are all workable and the situation is not the fault of the owner or of the code officer. Board members began asking whether the parcel existed before the previous town meeting; the code officer said he could not take a possible future ordinance change into account when he wrote the letter.

7. 38:49
   What changed in the Resource Protection District

   The code officer said the change came from more accurate data and mapping against six criteria, that single-family housing has never been allowed in resource protection, and that the district now covers almost the whole lot where previously it covered none of it. Kelly Burnham (?) explained that the lot was shaped to reach 2.08 acres while keeping it clear of the stream and her horse pasture, and said the building area stays dry.

8. 43:50
   Board declines to examine why the parcel was mapped

   Members agreed that trying to determine why the planner placed the parcel in resource protection would be a long road and not a workable way to look at the case, and that they had to take the mapping as it is. The code officer restated that the parcel was surveyed and he made a determination on it, but that it was not on the town's books or in the registry of deeds at that point.

9. 49:03
   Dates reviewed and the grandfathering point

   The code officer noted that anyone may split off a lot without consulting him, and that if Jamie had applied for and received a building permit on March 8 she would have been grandfathered when the ordinance changed. The board reviewed the dates: survey and septic test in late February, the letter on March 8, and the bank application and payment on March 22 (one exchange gives March 27 before settling on March 22).

10. 54:21
    Whether equitable estoppel is within the board's jurisdiction

    Paul First (?) asked whether equitable estoppel is something the board can apply or something for the selectmen, and noted that an administrative appeal under the ordinance is not de novo, so the board could consider only the evidence the code officer had. Zuckerman (?) said the board has jurisdiction and that what is appealed is the November 27 denial letter, not the March 8 letter.

11. 1:00:10
    Code enforcement officer's position and the effect on resale

    The officer said he gave the March 8 letter in good faith because it was his job to answer the request, that he could not speculate on whether a zone change would pass, and that he had then to deny the permit. He said he agreed with the appellant while having no authority to give permission to build, and told the board a mortgage loan inspection on a later sale would not be an issue, since other houses are now in resource protection that were not when they were built.

12. 1:05:35
    Flood zone questions and the GIS map

    Members asked whether the resource protection line follows the flood plain boundary; the officer said he could not say, that the lot is in the 100-year flood plain, and that building there requires construction to one foot above base elevation with a permit and further inspections. An attempt to display the district boundaries on the town's GIS map took several minutes and did not resolve the question.

13. 1:10:40
    Public comment

    Kelly Burnham (?) said the maps and deed description were prepared in January before they went to the code officer, that she had voted for the resource protection change without knowing it would affect the lot, and that they learned of the problem in October when the driveway permit was refused. Valerie Good of 184 Middle Road (?) spoke in support. A board member said for the record that the board must leave emotion out and decide on the facts presented.

14. 1:15:51
    Which route to take: variance or equitable estoppel

    The chair set out the two directions and members asked what the consequences of each would be, including whether granting relief would set a precedent. One member noted that few applicants would hold a letter like Jamie's, and that the same letter could be cited under the fourth variance criterion.

15. 1:21:21
    Variance criteria read; first criterion voted

    The board concluded that the ordinance offers only an administrative appeal or a variance, with no equitable estoppel option, and that the costs incurred after the denial could be considered only under a variance. Terry (?) read the dimensional variance standard aloud and the board voted that the proposal would meet all other requirements of the ordinance except the dimensional provision.

16. 1:26:25
    The four undue hardship criteria

    The board took the four undue hardship criteria in turn, each moved and seconded. A member proposed recording that the fourth was met because of the March 8 letter and the obligations Jamie took on before the ordinance changed; Terry (?) said the ordinance wording itself cannot be altered and that the reasons belong in the written summary of the decision.

17. 1:31:41
    Motion to grant the variance, and adjournment

    The board settled the wording as a variance from Section 4.1 district requirements A.1.a, the minimum contiguous 40,000 square foot building envelope outside the Resource Protection District, and voted. The chair said the written determination would follow within seven days, and the meeting adjourned at 7:25.

What was decided

• 12:25
  Elect Paul First as chair of the Board of Appeals, following Barbara Schneider's resignation. One abstention was noted; the code enforcement officer then handed the meeting over to him.passed
• 12:25
  Allow the alternate, Byron Philbrook (?), to serve as a regular member for the evening in Barbara Schneider's absence. The tally is garbled in the recording, but he took part in the votes that followed.passed
• 12:25
  Accept the board minutes of the November 21 meeting. The motion was made and seconded; the transcript does not record the result.outcome unclear
• 1:21:21
  Find that the proposed use would meet all the performance standards of the ordinance except the dimensional provision from which relief is sought, that provision being the 40,000 square foot building envelope. Two counts are given in the recording, 4-0 and then 5-0.passed
• 1:26:25
  Find the four undue hardship criteria satisfied: no reasonable return without a variance, unique circumstances of the property, no alteration of the essential character of the locality, and hardship not the result of action by the applicant or a prior owner. Each was moved and seconded; the individual tallies are not audible, and the chair afterwards stated that all the criteria had been satisfied.passed
• 1:31:41
  Grant a variance from the dimensional requirement of the zoning ordinance, Section 4.1 district requirements A.1.a, the minimum contiguous 40,000 square foot building envelope outside the Resource Protection District. The chair then told the appellant she would receive the written determination within seven days and should apply for a building permit once she has it.passed

An outcome reads "unclear" where the recording does not state it plainly. The recogniser drops short words, and "the motion does not carry" is one missing word from its opposite.

Worth knowing

• 17:44
  The ordinance requires a contiguous 40,000 square foot building envelope outside the Resource Protection District. A board member read the officer's memo as saying about 15,000 square feet was available on this lot; a later exchange restates the figure as 1,500, so the two accounts conflict. The officer said that before the mapping change none of the lot was in resource protection and there was more than enough room.
• 49:03
  The code enforcement officer said anyone may split off a parcel without consulting him, and that if Jamie had simply applied for and received a building permit on March 8 rather than going through the bank, she would have been grandfathered when the ordinance changed on April 1.
• 1:10:40
  Kelly Burnham (?) said they did not learn of the problem until October, when the driveway permit was refused, after the deed had been transferred and work on the land had begun. She said she had voted for the resource protection change herself without knowing it would affect the lot.
• 1:21:21
  The board found that the ordinance provides no equitable estoppel route: only an administrative appeal or a variance. Because an administrative appeal is limited to the evidence the code officer had at the time, the money Jamie had spent could be weighed only under the variance criteria, which is why the board went that way.

Motion language found in the transcript

Located by pattern matching, with no model involved: "I move that", "I'll second", "all those in favour". This is an independent check on the summary above: 2 passages of motion language, against 6 decisions summarised.

Elsewhere

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