TranscriptBoard of Appeals Meeting ~ January 22, 2024

viewers so and Allan I'll leave it to you to open the meeting yes so uh my name is Alan plumber I'm the code enforcement officer and I would like to call the meeting to order uh at pledge United States of America and to the Republic for which it stands One Nation God indivisible with liy and justice for all thank [Music] you and just say here for a roll call

um Neil Barry here Paul first here Terry Kirk say here here Milton Simon here Byron Philbrook yeah is alternate um we do have a quorum and um just to let the public know U Barbara Schneider has resigned as the um chair of the appeals board um so that's effective um now um we do need to um go

through an order of um procedure here but we will need to uh elect a board chair um did that last meeting we did a temporary board chair so I make a motion Paul first be the board chair I'll Che it any discussion nope willing to serve until I

possibly you know get so busy I can't serve anymore so at some point I you know I may call on one of you guys but willing to serve for now any more discussion can I get a vote all those in favor raise your hand all those opposed any abstained AB one here's a big dog now what's here's a big dog excellent so my job now is over he's in charge okay if we had to officially vote you do we have to revote the secretary I don't believe so I don't believe so the chair was a temporary yes okay I think that's right okay stuck with it welcome everyone um so I think our first order of business here is with regard to

just going to have to remind me of your name again well Byron of course Byron yes okay so Byron uh Byron you are currently serving as our alternate um I would ask for a motion to allow Byron to serve as a regular member so move in the absence of Barbara schneer for this evening's meeting I second yeah okay uh discussion

all those in favor okay so and uh abstaining Y and a post very good all 41 Z okay very good okay so our next item of business is minutes um and if someone someone could provide for me the date of our last meeting does anyone have the date November 21st November 21st so I would ask for a motion to accept the board minutes of November 21st so moved

second uh discussion all those in a copy of those by chance I do I'll sign it yes uh you have a copy on your table okay appeal and um this is from Jamie tney torini torini okay very good thank you excellent and she is represented by attorney Zuckerman that's correct first name is Larry very good okay Val zuckman all right so um and

this appeal pertains to a piece of land that she's purchased and the dimensional requirements in the ordinance uh and it also pertains to the ordinance change from last to meeting that's my understanding what we typically do is we let the CEO just kind of give the overview of the uh issue at hand and then we ask um the appellant to give a statement okay if that sounds good to you guys yeah and the only thing I would request and this is the in in the interest of all our time this evening is that the submission that I previously made including the exhibits be treated as uh part of the record a

part from any oral testimony that might be given or further statements that are made in order to shorten up uh what the record would be unless anybody has an objection to any part we make sure that's reflected in the minutes um and it it seemed like a a thorough package thank you all right very good so

officer for Durham um I had an appointment with um Jamie and her sister I can't recall Kelly Kelly yeah uh Kelly um they needed to get a zoning determination for a paral at Kelly's property um in order to possibly split it the bank is the bank required that um Kelly owns the parcel and the bank she has a mortgage on it and the bank needed to release a portion of it so that she could split it off so I looked at that parcel um looked at the requirements in our land use ordinance um there seem to be a uh buildable area um it may have been it could have possibly been in the flood zone however you can build in the flood zone if you build two flood standards um and I did note that in the letter um that I gave them that letter I believe was on March 8th is that right yep um March 8th yep and uh at that point in time I looked at the zoning that we currently had um made sure that there was a building envelope available

um that it wasn't in any restricted zones and it looked like uh depending on the size of the house cuz I can't determine you know I can't say you can put any house there cuz if it 990,000 ft that probably wouldn't work but there is a potential to put a house on this parcel so I did issue that letter um and

I put that in the file gave that to Jamie um and they did whatever it is they did and you found some of the the evidence of what they've done is in the packet that you received and they can clarify what they've done after um the next I heard from them I believe I may have had a phone call or something but I don't recall that um the next time I heard from them um uh Jamie came in to um give

me I think you brought in a septic design you bring a septic design in no the building per that's incorrect okay at that time I think that was for uh ready this to go ahead and obtain a building permit once plans were sub yeah so uh a building permit and I brought up the parcel as I always do and at that point which is after our last town meeting um the resource protection Zone had changed and I said uhoh that there's a problem here so you need to have a building envelope of 40,000 square ft that is outside of the resource protection zone so unfortunately I can't give you that at this time so I denied her um I she asked for a letter and I wrote up a denial for building permit um based on the evidence at that time I um I always have to go with the the ordinance as of today the day that someone's talking to me that's the ordinance I have to go on and that's what I did um so I informed her that

she's available uh has available the board of appeals and she's entitled to appeal my decision um and that's what she's done did I leave anything out or do you have questions about what's the difference in the square footage what kind of order magnitude are we talking significant there's not there's not even a um I don't have the number in with me right now but I could not even get anywhere outside of the resource protection Zone anything close to 40,000 sare ft uhhuh before that there was a large very large area I see you know compared comparatively not not extremely large but big enough for 40,000 sare feet which is all you need uhuh okay yes okay very well your memo said uh 15,000 square F feet was available 15,000 thank you great thanks thanks okay um if I could also ask Larry um after giving

your statement if you might be willing also to talk about just briefly how you how um you and the appellant feel this case should be heard whether you think it should be heard as an administrative appeal yeah or a variance uh I I noticed

in your letter that you offered up both options yeah because I I really believe that uh this case while it certainly fills the requirements of an asole action uh it also I think under your ordinance qualifies for variance right and the point here is uh we ought to try to achieve at this level something that works for both the town and the applicant in this case and I uh give

some kudos to Allan because in his November 27th letter what he indicated in essentially denying at that time the zoning determination he said the only thing you qualify in every other regard whether it's lot size whether it's setback uh even for that matter being the area small area out of the flood plane that would be usable so what I think he was saying is if the old ordinance would

have been in effect then I certainly would have granted a building permit had plans come in that complied after all if you think about the average house what is it maybe 1,500 to 2500 square feet of living space at the most they had a little bit for a garage and there's no question this this any plan

would have hit on that zone so now we come to the question of Equitable or stole and the reason I bring this up is because it it is actually a fairly clear case to me relative to Jamie circumstances and let me sort of recount the facts that are in the submission and and add a few more that will be helpful uh I think the first thing is that Jamie who has been a lifelong Town

resident but had rents now she uh has three boys one of whom lives with her part of the time and lives with his dad the other part of the time she would like to build a house and as we all know what's happened in terms of the marketplace it has gone right through the roof so to be able to afford a lot in Durham is a tough go no question let alone is there any inventory for sale so

what happened was Kelly Burnham who is Jamie's sister said okay look I'll sell you two acres of land that complies and we can go in see Allen relative to what we need and what Jamie did is she had a survey done she had a site analysis done including uh the septic design uh Allan

was able to easily determine the elevation for the parcel this is on I believe March 8th or maybe a day or two before and by the way that uh the if if you take a look through the exhibits all of that is included and and so she went ahead and did everything she needed to do that she could do on March 8th because what her plan was over time with limited resources is to pay Kelly over a period of time and in fact she went ahead and made her first payment of $6,500 on March 22nd prior to any change in the ordinance and and I would submit to you that if you were reviewing or

part of the planning board and you said look do you have an interest in this proess property in order for you to have standing to be heard uh the answer is yes because what she did is start purchasing that property back in March of 2023 further the only thing that she could do on a legal basis was to request of the mortgage company a release for that 2.08 Acres that is part of the survey and and in mind you bearing this in mind that everything else complied so

what Jamie did was go ahead and do everything she could and and again in the exhibits you'll see the payments that were made to uh I believe it's JP Morgan Chase Bank uh which I think is out of New York but the payments may go to can Kansas or South Dakota I don't know which and and did everything that she could at that point and the reason both Kelly and Jamie went into SE Allen was to get a letter approving the parcel as a legitimate lot so that they could request of the bank a release because

otherwise Kelly would be in default under her motive and that's what they did and and as typically known by everybody what happens is Bank particularly large Banks take forever to approve something but finally on June 30th after money has been spent payments have been made they finally say yes we'll give you approval here's the release and so the next step is of course get the title search uh go ahead and get a deed made up which was done

and I think the deed is dated August 14th that's when the closing occurred uh to go ahead convey the property legally but remember she had an equitable interest in this property back in March and she did every everything possible that she could have done at that point in time prior to any change now how do

we come up with Equitable stopple and how does that apply well the first thing is Equitable estole is a uh a Equitable law that basically says if you rely on what someone has told you or an action that they have done provided that they are authorized to make that statement or make that decision and you rely to your detriment on it then in fact an aole or

if you will a stop order should apply to prevent the enforcement of something that occurred through no fault of the person own efforts so that an unfairness doesn't occur and uh what's interesting about this particular case that I found because I cited a case from the city of Auburn it is the last case that I cited and what happened in that case is someone bought a multiple business they

had a gift shop they had a nursery they had a landscape business they sold some other things things and the code enforcement officer came out and said look um if you want to do this you have to go to the Town Council or the city council and get a change of Zone and what you need to do is change it from an urban residential Zone to a business zone so these people went ahead spent a lot of money doing this they were spending a lot of money on their business and went to the city council and uh uh lo and behold uh the business Zone was approved and they went ahead and started operating their nursery and landscape business in addition to all these other businesses next thing you know the code enforcement officer comes out says I hate to tell you this but uh even though we never discussed this uh Nursery business and a landscaping business are not allowed in the this General bus business Zone that got

approved by the council and so what they did is they then appealed uh to the board of appeals they were turned down they then filed their action in Superior Court and Superior Court came back and reversed the decision of the board of appeals because what they said was that in this case the people went to the code enforcement officer and spoke with them and said what do we need to do if it's not proper and he told them yeah well you got to make it a general business Zone he didn't tell them that it's the nursery business and the landscaping business were not included within that zone the city so the Supreme Court ruled in favor on the basis of Equitable

Supreme Judicial Court which is the highest court in the state and the highest court in the state reviewed the facts they can't change the facts or take new testimony but they came back and said you know what out of fairness these people ought to be able to operate their business because they relied on someone who was authorized to make decisions ought to be able to believe what that person said and acted to their detriment and the biggest piece is had he told them way back when they would have never have gone ahead and opened up their Landscaping and Nursery business so that's Equitable a stopple on a case that exists and and in that situation what the uh highest court in the state said was we're not going to allow the city of Auburn to enforce that portion of their zoning ordinance so in this case what I am asking you on behalf of Jamie is don't

enforce against her this new zoning change because if we take a look at the facts of this case you know Jamie went in to see Allen in a very timely way never received any written notices from anybody or the town regarding changes that were occurring in terms of zoning that might affect her and and and uh

relied on this letter yeah in order to make that change and if we take a look at where we are right now with with this this matter uh realistically if you look under your variance uh requirements it satisfies all the requirements of the variance uh because you know it's within the setbacks there's a septic system that flies the well can be drilled yeah uh all of those things not not at the fault of the owner not at the fault of the owner and and to be honest not at the fault of the CEO because the CEO didn't discuss a zoning change because who knows whether that zoning change would have been voted in but the key was here

which I think it makes it compelling at least to me and similar to the case with the city of Auburn is that uh uh really everything that could have been done prior to the zoning change was in fact done by Jamie and a lot of money was spent so and and the best solution I think for the town and for Jamie would be to all either one Grant the variance if you feel that's more palatable or uh accept

Equitable aole in the assistance and not enforce the zoning ordinance that currently exists relative to this particular lot but rather simply apply the zoning ordinance as it existed prior to April one so yes J Alan was this piece of property that we're looking at in existent before town meeting of last

year are you talking about the partial that was split off for Jamie yes surveyed right it it it had been surveyed I and that's what I saw if if I could uh in my view that's why I pointed out Equitable interests in my view it was split because Jamie had an equitable interest in 2.08 acres prior to that town

meeting and she would have had standing to come before any board or planning board as a result of that Equitable I I understood that there was a change there's a possible change coming for the uh town meeting and I can never look at that possible change I don't I can't I can't answer questions about it because I have to do with I looked at what was H what was in force today so I wasn't concerned about that I

knew that I I had an idea that there could be a change but how do I I don't have a crystal ball to know if that was going to pass or not so I looked at that parcel if she wanted to build tomorrow and and I had to answer because she needed I don't like giving those letters but they needed that letter for the bank is is why I gave it gave gave it to them but my question is did this

piece exist before town meeting I saw it and I'm thinking if and maybe you guys could help us with the chronology here because I saw I think um a deed that was prepared for the mortgage release um in late March before town meeting so I'm assuming before you can apply for the mortgage release you have to have the survey done right okay and so when did you apply for the mortgage release that was applied I believe on March 22nd before the town meeting and so when you when you do that do you also draw up like a draft deed I I don't know the answer to the question of whether a deed was drafted but I believe it was because on June 3 30th when they responded with a letter they also gave a uh release

deed uhuh and that was dated June 30th as well yeah yeah okay so what's the answer to my question I think it depends on how you look at it I think it depends on how you look at it if you look at it from this legal uh perspective of did

the Felon have legal interest in the property uh I would say probably yes um did the lot officially exist like on the towns books probably not so it's it's I think it's both yes and no God I agree so I had to kind of look in the future there I the reason that I gave it

as I said I don't like giving those letters they're they're code officers want to stay away from those letters but they can't can't go to the bank to get a release without this letter therefore I have to make a determination I had to do that at that point in time what was the change in the uh in the zoning it was it just an expanded flood plane no a resource protection uh

rezoning of resource protection some parcels uh some people in town gained from that resource protection change other people um I I know but there were several things that happened was it just an expansion of the of the Zone what was it because it was also some some uh that organization that was looking at wildlife and so forth yeah this criteria the different criteria more accurate data is where the change stemmed from more accurate data and depiction on um mapping and and the mapping of the different criteria for the resource protection and we have six criteria which Chang the FL plane which changed yeah yeah um so did that uh our our new resource Protection District could you remind me that doesn't allow single family housing is that correct uh it's always not allowed it so

if if I had seen resource protection there I would have said when she came to me no you can't do that here yeah so that new resource protection impinged on that yes okay yeah I a couple questions um first of all why the shape of this this seems like a kind of an unusual plot any any reason why it's shaped the way it is asking me that anybody whoever can answer the question can I answer that sure so I have there's like a little I call it a perennial stream that runs behind where

she would to build her house and it just keeps going to her house behind her house and that little piece that comes up is all like we needed to add it to make it 2.08 Acres so she would have enough land but the reason it went that way is it's there's it's not wet up there cu the little stream just goes straight out towards Quaker Meeting House rad so we made it that shape so it wouldn't impinge on my horse pasture because my horses and cows needs backlot where The Land is not there's not like a stream or a flooding area because when that area does get wet all this rain we've had it all comes onto my land her little lot is completely dry I told her she should take pictures because I drive by it every day three times a day and that little area is always dry the water comes when there's lots and lots of rain like further up towards my house and into my horse pasture so that's why we shaped it that way are you able to like

can we put a a dotted line or something that shows where the resource protection area is and where it ends I could uh it it covers um I can print something out if you'd like but it covers the the majority of the line I can show it I can show it to you on the map if you want yeah yeah yeah sure it does I mean cuz I'm looking at an area of 90 something square feet and you figure well there's got to be a spot somewhere in that in two acres cover covers the whole lot cover almost the whole lot and it it didn't cover the whole lot prior to that zero it didn't cover any part go once you came initially and why and

why was it add added to Resource protection I don't know the answer to that I don't know that specific LW and the reason for it added U the planner has those details and I don't get into them they just tell me this is resource protection and these are the rules yeah I'm not sure we can go that far back with regard to why it was add it but we assume it met whatever the criteria was that the plan was would the flood plane have something to do resource protection well that's not only the flood plane it's probably these other criteria too Rel to if it's only flood plane she could build in the flood plane she high enough mhm but in resource protection no buildings are allowed in the flood plane you can build to flood one foot above flood elevation and that's fine yeah I I fear if we go in that

direction you know to looking at why this was determined to be resource protection that could be a really long road to go down to try to determine that I'm not sure if that's going to be um an an effective way to look at this I don't think that's feasable think it's you you thought maybe it's feasible no I don't think I don't think yeah I agree yeah yeah I think we just have to assume you know that that's what it is we have to take that the reason I was asking about the law yeah okay is if lot

existed before town year before the zoning ordinance was voted in again it depends on the way you look at that if you ask um was the uh they came to me with this idea with this picture with this idea and this lot and they needed me to determine whether whether a home could be built on this

today and I looked at it with all the parameters that I needed to and gave them that letter saying yes this is an acceptable lot today you can it depends on I'm very careful depends on the house you put on it and exactly where you put it on it but yes there's a buildable area here so I I am determined mining I'm not

saying that I can't create Lots I don't have the authority to create Lots but I have the authority to make a determination as to whether a house can be built on this area which is a proposed law and they can't move forward unless they have something for me it's like the cart before the horse they can't go to the they couldn't get the mortgage company to release that portion without a letter from me saying this is a buildable law it wasn't registered in the Reg industry Deeds but um as Jim's

attorney has said as Larry Zuckerman has said she had an equitable interest in the lot so from their perspective I think the lot existed is that correct yeah in fact if if for example this matter had been say before the planning board the planning board would would have treated it as a lot because cost of the Equitable interest and from that perspective the lot

ahead this lot before town meeting how much of it was in resour protect none none that that I can remember I don't have the map in front of me but there was Zero yeah it was in the 100-year flood plan but there was Zero resource protection so resource protection there was more than enough room for the 40,000 ft buildable

puzzled would this be sure grandfathered is exactly the right term I think it it may more this question of this Equitable stoppable or variance as as they presented and you know I do think the other piece here is um I I certainly appreciate uh what Allan has said with regard to giving his opinion as of the date that the that the appellant came in for for determination um you know the other side of the coin is that uh you know I do think we want to try to be good partners um and this is a interesting

situation where you know March 8th u a determination we had a determination and then I believe April 1st the new zoning ordinance passed so this was only three weeks later and um was there any mention of this zoning ordinance no that it was being considered no

uh this happens you know I think we all know this happens it's um Town governance isn't always this neat and tidy thing uh there are always things that happen that are kind of outside of the box and this appears to me to be kind of one of them so I will bring up a point that uh any anyone can split off a

lot and they don't need to come and see me so if they if if Kelly owned this property and didn't have a mortgage she could say get a surveyor plot that out split it off sell it whether it's in resource protection or not and they and she could have come to me in said of like a building permit please at that point if it were in the resource protection Zone I would say no if it didn't have prior like prior to the change in the resource protection Zone I would say yes so that it's she's

done a lot of work and did everything she should have done and is not required there are lots of people that split off parcels and don't check with the code officer first let me ask you based on that so if she had done this the way that you're describing now and come in and got a building per permit from you on March 8th what would have happened on April 1st she would have been grandfather Yeah D gr yeah AB that that's what I can't wrap my head she would if if that had happened she would have been grandfather the permit was in place yeah y so I just want to review the course some some dates here so it was on

8th that you gave her the requested letter so that she could proceed and approach the bank yes all of her actions after everything that happened after that whether it was payments whether it was uh um you know relations with the bank whatever all occurred after the April 1 is that correct no March 22nd she sent

in the letter and the application to the bank to have the mortgage released she made a substantial payment for the uh cost of the lot on March 27th March 22nd yeah and and that that's in the materials that I submitted okay she at at that point there was nothing else that she could do other than wait for the bank's response so I just want just reiterate that a payment had been made uh on March 22nd there was already communication with the bank okay right payments to the bank were

see it no then we had also a septic had a septic test on February 28th I guess before you even came in spoke with date on the survey all the surveys are dated I believe February 28th oh yeah no February 20th or 28th yeah exactly

thing could have occurred and and when she came to see you on March 8th she could have been applying for a billing permit and and receiv receiv it and received it right but the but because there's a mortgage involved the bank involved then you have to go through that process and the bank H holds things up installs the process

mention also is is we don't know relative to this change in zone whether this was uh recommended by whoever recommended this change based on aerial photography or actual onsite uh data and and I'm willing to bet that it wasn't from on-site data because I think this was sort of a wholesale change for the entire town and

I only mention that because again from what's been described to me with these past two storms that we've had which had a lot of water and Rain Jamie's lot had substantial area where it was high and dry I've done a lot of work over there already cutting trees clearing so it's pretty pitch dry um with regard to Equitable

estole is that within you feel that's within in the our uh jurisdiction as an appeals board to to for example say that um uh make a determination that uh how should I say uh that the decision of the code enforcement officer was an

really say it was an error because he he interpreted the ordinance no I I I think what you can say is that uh you the appeal is granted should you feel that way and that uh in fact the in this instance the code enforcement officer should not enforce the zone as it changed on April one but rather apply

the zoning ordinance as it existed relative to to this lot prior to April 1 based on the principle of Equitable estole or or variance and what's interesting about variance if you look at each and every of the four items that

are mentioned the first one is good cause is there good cause to do something here where would otherwise be an unfairness to the applicant who's seeking to do this and in this case I think an unfairness has occurred not through intention on her part or for that matter Allen's part uh the the reality was once

the potential of a zone change was never brought up never discussed never noticed then at that point in time you have to consider a stole applying in this case and this is where it should apply rather than uh costing Kelly money for me to

appeal to the superior court and for the town to pay its attorney to perhaps fight it I don't know but it seems to me this is the place to work it out because in the zoning ordinance itself I think the concept of equity exists that's why there are the opportunities for variance yeah uh so you know one thought I have is that according to the ordinance if we're looking at an administrative appeal then that's not a den denable appeal so we're not we're not able to consider new evidence we just have to consider the evidence that the administrator the code officer had in front of him who was making the decision and I don't know and you know there is I see a lot of Fairly compelling evidence here um so I you know I think it does make sense for us to decide what road we're going down with regard to you know are we looking are we talking about a variance here or are we talking about something else um with regard to the

Equitable stopple you know I'm new to this new to this uh charge here as forair and of course we don't you know we we've been so fortunate to uh to have uh the service of Barbara Schneider and Gary Wood over the years who would have just like seen right through this um but

a little unsure how Equitable a stop will applies with regard to the board uh my my assumption would be that it would be more of uh something that the Selectmen would be able to engage with the municipal officials such as the selectman that it would happen in uh that there would be some type of instrument or agreement Equitable ass SLE yeah I I don't think so I think you clearly have jur ition here I see hence hence the

case that I cited yeah because very fairly Allen in fact is the code enforcement officer he's the one who's in charge of making the decision and what's appealed is not the March 8th uh letter but the November 27th letter in which he says G whiz there's nothing I can do uhhuh so that's what's appealed here and I think it's well within your jury jurisdiction which is why in in that case I cited the court ordered the

city to have the code enforcement officer go ahead and not enforce the ordinance okay so I'd like to comment on E Equitable stopple it's a term that code officers are very familiar with and exactly exactly why I don't I don't cherish giving a a letter saying you can do this I don't like doing that I try not to do do that there was no there was no question that I had a responsibility to them when they asked me for that letter to do so they explained to me what they wanted to do I had to give them that letter it's my job to give them that letter because of timing I gave them that letter before the the meeting the annual meeting where they voted on a new resource protection Zone in good faith said you can build here mhm yeah and also in good faith when they came back after the Zone had changed I had I can't speculate on whether a zone is going to pass or not in a town meeting I can't do that so bad

timing they came after that and I had to also say I'm sorry but now I can't give you that building permit so that equable Equitable stoppable is in my face it seems very clear because of timing that that would be an issue for the town down the road it could be an issue for the town down the road because of my letter initial letter and my subsequent letter saying I denied it it's the a stoppable part of that is

I told them yes you can do this and you can proceed because there is a building area here and they did what they needed to do because they had my word on that so you're in agreement with the Appel yeah I have no authority to give to give her authority to to give her permission to build but I do agree with the do you have an opinion with regard to where this belongs whether it belongs as an equitable stole action or whether

it belongs as a variance I think um the wording so don't get me wrong please don't say that I in error gave any letters because I don't want to be um but I think equable Equitable stopple is um a very likely if if you were not

to Grant an appeal for this particular instance equ equable stole would continue on I think this gentleman would continue on with that case and probably um do something with that with the the town of Durham past this appeal process yes but that's not wasn't my question okay okay I I think that that probably is the is the direction to go is the Equitable estole because of that I gave her a permission she moved forward and the timing says now I can't let you build here they've spent money they've done yes exactly I mean for me that's kind of the key is they have these she took on these contractual you know whether they're written contracts or oral contracts but she took on these obligations um she took on these obligations based on your letter and she took on those obligations between your the time before town meeting before the time that the Zone was changed right and that those obligations were fairly substantial okay

they were a payment they were a of course septic test the survey uh a draft deed having a attorney draft up a deed and the mortgage release letter all those things and and payments to the bank for the mortgage release and payments to the bank for the mortgage release right I don't know who makes those that's probably might have been well no it might have been Kelly but reimbursement was then made of course for that and again on the same date March 22nd

to a previous uh appeal do and you were saying you know which road kind of in the back of our minds which road to take yeah between the two so looking ahead there's going to be a day where um this profit is going to be sold again and so I'm wondering if that is going to create an issue when when she goes to resell this property the fact

that it went through this appeal process and whether it's it was granted by a variance or granted by the equitable stole is that going to affect when she tries to sell this she's going to proceed if if you were to Grant her an mortgage loan inspection let's just say mortgage loan inspector comes out and says looks at the property and says well um yeah everything looks good but you know the interesting thing is this uh this whole property is of resource protection I see here in the DM ordinance that's s family housing isn't allowed in resource protection right so and there's nothing in the registry of deeds that shows that um that a decision has been made to the contrary is that an issue no and the reason would be is let's say you had granted a building permit and the house was built prior to the ordinance change

now the ordinance changes it's in the resource protection Zone I does it make a difference no uhhuh and and on the mortgage loan inspection usually as I understand it they're only looking to see that the house is within the B yeah yeah yeah yeah exactly or set back so we should be fine all right there's already houses that were in out of resource protection and now are in resource protection when the ordinance was changed yeah that's already happened end houses that weren't that were built before resource protection was established right so I have a question Mr

ignore no I'm not going to ignore so I I I I made an assumption this was a fud planes issue it's not no I I so so the appeals under the flood planes management article in the in the ordinances not does not apply we don't know do we we don't know if the reason it's in resource protection is because of the flood plane boundary or other factors is that correct correct correct okay so we don't know if it's flood plane or not but you can build in the flood plan is what I'm saying but there are requirements to do so yes and we're if we're giving a variance for that which I guess if it's the estole approach we not there's responsibilities on our behalf to let people know about flood insurance Etc Etc right and then and all other all other ordinances would apply every ordinance that's here if they were going to build in the flood planes I I would require them to build to base elevation plus one foot so you have to investigate

that are they they would have to if they if they were going to put it in the in the flood zone if they were going to build in the flood zone a single family residence well you can build you can build accessory buildings or single family residents in the flood zone if you build to one foot above base elevation they would be required to get a permit from the town uh first showing base elevation and the and the point where they've marked that and where they're going to build to and then three other inspections by a surveyer for the flood zone who lets them know what's the flood zone is my question the surveyor a surveyor would determine determine where that would be where where they have to build to the point that they that was already done there's a Erp p at my site for elevation already for the flood zone oh so it is in the flood zone yep okay yep it's in the 100 year right right right okay

building envelope out or a 40,000 square foot building envelope outside of the flood PL no and I just saw my letter it's 15 there's only right 1,500 I'm talking about resource protection right there there could there could be so as I said in my initial letter there could be outside of the flood zone but they can decide to build outside of the flood zone in the flood zone or whatever but if they're in the flood zone they have to build to okay so maybe it's not relevant for this decision is is it D

here the no that's resource protection that picture I believe is is the resource protection [Music] area could be the 100e flood mark it could be I'm not sure that matter well I'm assuming the that black here is a flood zone and the lighter gray is resour prot

I can't answer that with that picture what what is the green on the map you can you you can change the the the lighter green is resource protection and you can change you can change the uh filters that are on or off to show it's not a quick process there's

be able to see that there's some markings [Music] is where she is is this our GIS map yes if you no no no it's not this is G this is GIS okay so you need to be the gis and find her parcel it's right yep uh it's right here this one right here so right here click that this no right

yes choose that top that check mark right here no over this way more yes turn on layers the top over there that you can add or subtract I was looking at add more simpler map well it's not simple well maybe this would be a good opportunity now to ask if there are any other comments from the public uh regarding the case because you know I think we're actually required under our ordinance to give the opport the public an opportunity to speak uh about the case and um so I believe uh

Kelly Burnham yes you had already made a few comments do you have anything else you'd like to add to your comments about the case and if you do I would ask you to come up to a microphone sure I would just like to add that that

um I'm just going to pull this over that I never would have that's probably not going to work um is this okay sure absolutely so when we decided in like January to get this ball rolling we had to have the maps drawn the deed description all of those things done before we even came to Allen so he would know what was looking at that was in the beginning of March when we finally got here um we didn't know in April that this changed um and kept getting burn permits and working on her land and um I would

be in a butter of course and this is Valerie our my neighbor that would be her other side of her and I just want to say that that area like I was all for voting for like resource protection and like protecting our town of durm I actually helped vote that in I believe and had no idea that I wouldn't

have gone to this route I guess I was trying to add to to help her build there um I wouldn't have gone to the bank and you know gone to this process just seems like from March to April it was just shocking to find out that that we worked so hard up till I don't remember when we got the deed finally in her name and was so happy and excited but it just was such a let down when she came in October to get

her driveway permit and was denied that's how we kind of found out that this was a problem and it was very traumatic to me I had a very upsetting conversation with Allan I like totally flipped out because we had been working and working and just waiting on the bank and waiting for this and waiting for the guy to come and talk about putting in the driveway and then I come home and the town was there the road commissioner was like yeah the driveway is going to be good come up to get it signed and was like oh no we can't sign your driveway permit well what do you mean you can't sign the driveway permit because we're not going to give you a building permit I just want to ask that it's been a horrible time and I hope this works out for my sister I'm sorry to keep you any longer that's great thank you and I believe the L is worthy of the house let's see Valerie did you have any comments yes um sit come on if you could

just say your name for the record please I am Valerie good and I live at 184 midle Road how you sp your last name g o o also AB but Jamie's um I know that if I was in the same case this same issue having spent money time and energy um to

have my dream crushed because of of it being changed within a few weeks after I was told I could that would that would be devastating and so I'm putting myself in Jamie's spot of I wouldn't like that happening to me I've spent lots of money resources I had my hopes up I got all of this and now I can't um and so yes it's

not a grandfather type of thing but it kind of was to a point um and her land doesn't get any water so I drive by it too there's no water there um and I you know it's definitely a buildable ww so you know I would I would really like like to be able to see her have her dream of of a a piece of Durham of her own thank you B yeah um as for the record and for the public who's watching um the as much as

I appreciate the the the emotional point of view we can't take that into consideration our our role is to Simply look at the whatever to presented to us we we have to really keep our emotions apart from this so I just want you to be to be clear that whichever way we it's decided it didn't mean that we were we we were moved by your presentation or we were notation has nothing to do with you as as as residents of durm we're all resence of durman so um but we our role we have to

leave the emotion out of it just strictly looking at the facts that have been given to us and have to make a decision based on our um deciphering of the fact so just want that said we still have appreciation for your comments and um and uh uh you know the the additional

you know as chair I I don't like to make motions you know I I'd like to leave it to one of you to make a motion or to you know flesh something out I don't know if there's still questions here but I think we you know we've heard a lot of we've heard a lot of the facts and um of course again this could go two directions you know this could go as the administrative appeal uh based on this principle of Equitable stopple and the fact that um the uh or you know you know that we feel that the appellant has a demonstrated interest in the property or in the lot we it could go that route it could go the route of a variance Mr J I justd would request some a little bit more clarification on those choices the choice of you know granting a variance yeah versus going the Equitable stop right okay what are the ramifications with with each okay well um you know know one thing I that I I guess I still have a little bit of

confusion with in my mind is if we go the administrative if we go the administrative appeal route um are we limited with regard to evidence you know with the evidence that we consider with the facts we consider because our ordinance says that we have to just consider the facts of cod enforcement officer considered um that you know we can't we can't uh do this as a denovo appeal whereas if we do a variance we can consider all kinds of all the factors um you know that I don't know in

this case because you know we're not looking we wouldn't be looking to find the decision of the code officer in error if it applies in the same way I'm not sure because you know I haven't you know I haven't been part of an appeal where we've used this tool that's being suggested with regard to Equitable stying so you know for me that's a little bit of Uncharted Territory um you know I I certainly have

appreciation for it from legal perspective because I have been involved in other projects and cases where this principle H has been demonstrated and um has been applied this idea of Equitable stopple and this idea of um an entity

having interest in a project because they have made prior investment for that legal argument being made um so you know the I guess the other aspect of it is looking forward okay so looking forward this is a new Zone you know might we have other appeals are we setting precedent are we setting by using one tool or the other uh are we making a statement with regard to precedent very versus not a lot of people will have a letter like Jamie does I think that's a that's a key factor yes so in some ways that Equitable stopple method is more uh Power or maybe

more favorable because um we're able to cite the letter we're able to cite that letter but you could also do that in a variance yes you know you could also do that in a variance and what is which one which variance uh criteria is that I can't remember is it like number four or C or something like that it's that fourth one that says not result of action taken yes not result of action taken or the prior so that's where it could be cited okay so I I think you could do it either way I think you could do it either way that's my sense my question would be uh

since we have no attorneys on the board how do we word the equitable stle EAS or whatever the right word is exactly so a variance we could take Larry's wording I'd be happy doing that but we probably want to submit it by our attorney I assume I don't know that we it's that's up to you but but I think it could I I think the wording could go into number four for sure exactly so number in in a way of the variance is is a tool that's already it's an outline that's already there for us with regard to a legal can we down can we like last time go down well that we don't have to do that if we're going equit right but maybe we look at the variance first we look at the variance criteria we go through the variance criteria I'm curious if we if we do the other if we do the aopo route can we take into consideration their costs yeah after the fact after after my uh after the determination letter can we because I I

didn't see I didn't see all that well exactly so with Equitable stole I don't know that you can look at the things that they presented yeah so I think if you if you're interested in that you need to look at a variance because in a variance you can look at all the fees that they've spent but in Equitable stoppable or administrative appeal you can't right exactly because it's only what I have and I didn't have all that exactly he didn't have all that when he made his decision you can only look at the facts that were on the table at the time for the code officer I don't I don't know that it says it's in the ordinance yeah I don't see that go stop from the ordinance at all that's a type of administrative appeal yeah there there's no equable stoppable option really it's just either it's an administrative appeal or it's a variance yeah yeah or or yeah and

there's two types of disab yeah two types of variant those are the only two appeals that you guys can EX yeah from that perspective it kind of makes sense to me to do what Byron suggested which is to go through the variance criteria and see where we land yeah all we have to do is approve all four of those and she's good to go yep y we need a motion to new that uh I

don't think so well you know they the applicant has uh or the appellant has said that they would be satisfied with either so why don't we go through the criteria I don't think I need a motion to do that okay so I probably could use some assistance so I'm going to have to pull up the ordinance here I I have it here oh excellent and we're going to read these in Terry's in consideration of really Terry's experience on this board and his wisdom we're going to read these word for word each one change it then you change the ordinance exactly so thank you Terry so if you could help us with that out if you could read each one go through and we will go through them you want you want to read them okay so I I can read it if you give the number start the whole thing so this is under powers and powers and duties of the board of appeals um administrative appeal is a we're talking about B variance appeals

to authorize variances within the limitations set forth in this ordinance number one dimensional variance the board of appeals shall not Grant a variance from dimensional requirements unless it finds that a the purpose uh

proposed structure or use would meet the performance standards of this ordinance except for the specific provision which is created the non-conformity and from which relief is sought and B the strict application of the terms of this ordinance to the p partitioner and the petitioner's property would cause undue hardship the term undue hardship as used in this subsection means okay uh do we want I just want to make sure we're not going too far do we first want to make a determination with regard to whether or not this project would meet or this uh you know this proposed project would meet all the other terms of the ordinance except for this specific dimensional provision yes okay and your statement is yes it would and my statement to that is yes the request would be would be allowed except for this dimensional issue dimensional issue okay and so is the board in agreement that do uh subordinate agreement that um what

the uh appellant is has proposed here would meet all of the requirements except for this dimensional provision and the dimensional provision is the 40,000 envelope exactly is the is the part that I so we sounds like we have agreement on that is that correct you already meet that right okay so all those in favor I just like you know I'm just trying to document this okay all those in favor please raise your hands okay all right so for and no one oppos 4 Z all right what's the next one so that was number one a okay 5 Z 5 Z thank you number 1B is the strict

application of the terms of this ordinance to the petitioner and the petitioner's property would cause undo hardship period the term undo hardship as used in this subsection means these four items okay we're going to vote on these individually okay number one y the land in question cannot yield a reasonable return unless a variance is granted so moved yeah second okay all

those in for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood Some Mo second all those in variance will not alter the essential character of the locality so moved second all those in

[Music] hardship is not the result of action taken by the applicant or the prior owner so moved um so I think before we vote on this I'd just like to add a little bit of language in there if we could and uh I'd like to make a motion that we

approve uh let's see what is that one B3 1 B4 yeah4 based on the fact that [Music] um uh uh that the appellant was issued a letter from the code enforcement officer on March 8th saying that she could that the lot was developable and that based on that letter she

uh obligations with uh the seller and also with um others and therefore um has an interest developed an interest in the property prior to the zoning changing something along those funds you maybe you can iron that out a little bit in a minutes and and the ordinance changed the exactly and the ordinance changed yeah so we add that what's that were you adding that well we I you know I want us to I I think we need to document in decision I'd like us to show in the decision so if somebody goes back and looks at this why we approve this actually kind two different things where we're voting on B4 yes but we need to document why

yes yes and you know here's the challenges I go back and I write that I I can't just make it up you know we need to State it for the record so otherwise we need to convene and review the the decision so you know we need to say for the record in this meeting why is that we're approving 1 B4 so that's what I'm trying to do wait a minute yeah okay you cannot

change the wording of that because then you've changed the ordinance okay so we got into this after after we voted on this you can make that in your summary as to why one two three and four passed or failed or whatever okay that that that's fine I'm happy with that too Terry so all those in favor of uh one

the wording didn't change you voted on that right but it's the summary that is the important part for the record summ exactly you wait if I may y okay if you start changing this okay you've changed the ordinance yeah and we don't have the authority to do that right well I'm definitely not trying we like we don't have the authority okay okay so in summary for the record help me here why are we approving uh 1 B4 uh it's actually B B4 so it's y b one

B4 okay yes yes I would say that the way I feel about this is uh this property lot or whatever you want to call it was basically done before town meeting mhm okay so basically it was done before town meeting and maybe I'm using the wrong word but I would almost think there would be almost Grand I wor done Apple had a had a had an vested interest in the property Equitable interest I thank you Equitable okay okay add an

demonstrated process would started way before survey done in February to town meeting um and based on the code Code Enforcement officer's letter of March board that really does limit any precedent to something that occurred prior to the change right okay very good

so uh the all the criteria have been satisfied for variants and so I'm not sure if we even need a vote to officially Grant the variance yes you think we still do need a vote I think you should vote okay yeah all right so all those in favor of granting a variance well then we have to approve the appeal uh we no we have to Grant it well we are by granting a variance we're approving we're approving the appeal it's the same thing approving the request they requested either a uh a variance or an administrative appeal they covered both bases they checked off both right but we're doing the variance it's an either War it's not both and so we've done the variance right yeah so all we need to do is just uh it's just a formality really to say that we have that we approve the variance yeah three um well we should come up with a wording for what the variance is the variance is uh we we allowing uh

Jamie to build on what in the 40 thou in a 40,000 foot Billy envelope with without regard to the resource protection of Val lot okay so we're regarding a variance from the dimensional requirement yes of the building envelope yes I think that's all we need to say that may be all we need to say what do you think VAR is for

the envelope requirement for the dimensional requirement of the building envelope for uh approving a variance from the dimensional requirement of the building the yeah that's specific because that doesn't that doesn't wave anything to do with the flood plane which is section four 1 a 1A building

no no just just a variance for Section 41 District requirements A1A minimum buildable area is the contiguous 40,000 foot building envelope which is not in the resource Protection District okay so I'll just copy that when I it up okay so um I make a motion that we

approve a variance from the dimensional requirement of the zoning ordinance move for the I second it all those in [Music] favor for thank you very much and thank you for your very careful consideration of the issues very interest all right yes we wish you

you'll get a determination okay um from the chairperson this one's only going to be a paage yes thank you okay so a determination and I will get that to you I need to get that to you within I believe it's seven days okay any kind of a time limit now to apply for a billing permit no but I would apply for a billing permit as soon as possible yeah um uh yeah you should wait till you get the letter so yeah you uh uh I'm losing concentration here um s days you'll need to get that and I'll send that either you come and sign for it or um and I so I'll have to wait till I get it um or certified mail so coming through sign for it would be a quicker way to do yes yeah just yes yeah we'll have that for you in just a few days the decision great thanks very much than guys very much thanks for your time okay we got yes yeah okay all those in favor all right we are adjourned at 725