Board of Appeals Meeting ~ November 21, 2023

2023-11-21 · Board of Appeals · 3:02:17 · watch on YouTube →

Board of Appeals hearing on November 21, 2023 on a request for a dimensional variance for a garage at 12 Rabbit Road. With the chair and vice chair absent, the board elected Paul First as acting chair, then heard the code enforcement officer, the applicants' attorney Michael Malloy, the applicants, their agents and the buyers. The garage was built six feet from a property line rather than the required setback, which came to light only when a mortgage loan inspection was done for the sale of the house; the applicants argued they moved it on the instruction of the town's road commissioner. The board voted on each of the four variance criteria separately and the fourth, that the hardship is not the result of action taken by the applicant, drew only one affirmative vote, so the acting chair recorded that the variance was denied because not all criteria were met. The board then voted to recommend that the select board take up the applicants' request for a no-action letter as soon as possible, and members reminded the applicants of their right to appeal to Superior Court.

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. 0:21
   Election of an acting chair

   With the chair and vice chair absent, the board noted the ordinance allows it to elect a temporary chair. Paul First was nominated, seconded, and elected on a show of hands. Members present introduced themselves: Milt Simon of Stackpole Road, Terry, whose road name is unclear in the recording, Paul First of Chesley Hill Road, Neil Berry of Stackpole Road, and Byron Philbrick as alternate; four members are required for a quorum.

2. 0:21
   Appointment of a secretary

   The board noted the ordinance requires a secretary and it currently has none. Milt Simon (?) moved and Terry (?) seconded that Neil Berry serve as secretary, with the point made that the recording is available if he needs to check anything afterwards.

3. 5:27
   Role of the alternate

   Paul First (?) explained that under the ordinance an alternate is appointed to vote only if fewer than four members are present, but that the board's tradition is to let alternates ask questions and take part in discussion. He welcomed Neil Berry and Byron Philbrick, both attending for the first time.

4. 5:27
   The application and who was present

   The hearing concerned a variance request from Eileen and Terry, whose surname the recording renders variously as Free and LeFave, for the side setback of a garage at 12 Rabbit Road. The applicants were present with their attorney Michael Malloy of Auburn, along with the real estate agents on both sides and the buyers; the builder was not present. Paul First set out the order of business: evidence for the record, statements from the code officer and applicant, board questions, public hearing, then the ordinance criteria.

5. 10:37
   Evidence entered into the record

   The first packet comprised the application, a plot plan and mortgage company foundation survey, the building permit application, a builder's plan and a rudimentary drawing. A second packet submitted that week added a summary of the request, the mortgage loan inspection showing the setback insufficiency, the request to the select board for a no action letter, the signed building permit, the original building plans, a letter from an abutter and a letter from the buyers. Also in the record were the public hearing notice, certified mail receipts for the abutters, and affidavits from both applicants.

6. 15:42
   Why the matter is before this board

   The code officer had prepared a no action letter at the applicants' request and taken it to the select board, which did not proceed with it and indicated the matter should come to the Board of Appeals. Members noted the board has no authority to issue a no action letter and that what is before it is a variance request.

7. 15:42
   Code officer's account

   The code enforcement officer said the applicants went through the permit process in 2019, the permit was issued and the garage built, and there was no issue until the property was put up for sale. The mortgage inspection then showed the garage six feet from the property line. He gave the requirement as 20 feet from side and rear property lines and 50 feet from the front, though at other points in the meeting a 50-foot side figure was used and the permit drawing showed 50 feet, so the recording is not consistent on which figure applies.

8. 21:04
   Applicants' case

   Michael Malloy (?) said the applicants applied in August 2019 with a sketch that would have met the setbacks, and that the road commissioner offered to look at the site and then told them the garage had to be moved closer to the line, lined up with the mailbox, or the town would make them tear it down. Members established the road commissioner in that period was Calvin. The attorney said no final inspection was ever done, no enforcement action has ever been contemplated, and the town was unaware of the encroachment until the mortgage loan inspection.

9. 21:04
   Consequences for the sale

   Michael Malloy (?) said this is the second attempt to sell the property, the first having fallen through, that the buyers are first-time buyers with an FHA mortgage requiring title insurance, and that the abutters do not object to the variance. The applicants cannot sell at fair market value and are carrying a home equity loan with monthly payments they cannot meet unless the sale closes.

10. 26:22
    Equitable estoppel argument

    As an alternative to the variance, Michael Malloy submitted a Maine case against the City of Auburn, the name of which is garbled in the recording, on equitable estoppel: where residents act on a municipal officer's mistaken statement about zoning compliance to their detriment, the town cannot then use that mistake to take enforcement action. He said the case also addresses uncertainty about the role the municipal officer occupied.

11. 26:22
    Objection that the road commissioner is not here

    A member said the case is thoroughly documented except for the central claim, which rests on hearsay about what the road commissioner said, his reasoning and whether he said it. Michael Malloy (?) replied that formal rules of evidence do not apply, that the applicants are testifying to their own experience, and that the town is free to offer competing evidence.

12. 31:49
    The applicant's own account

    Terry (?) said he originally wanted the front of the garage level with the front of the house, 75 feet from the centre of the road. He was directed to the town garage to talk to the road commissioner about a driveway permit, who followed him to the property, wanted the driveway as close to the mailbox as possible because that was the high ground for water runoff, and said he wanted the garage pad 90 feet from the centre of the road. He said he was given no reason but took it as an instruction from a town official.

13. 37:08
    What the code officer would have done

    Asked why 90 feet from the centre line might have been specified, the code officer said he did not know and that he would measure 50 feet from the property line, looking for pins or a survey, and would advise an owner to build at 52 or 53 feet to be safe. Members worked through road widths in rods and could not settle whether Rabbit Road is three or four rods, so the relationship between 90 feet from the centre line and the actual setback could not be established.

14. 37:08
    Sequence of permit and site visit

    Members established the building permit application was dated and issued August 6, and the conversation with the road commissioner was in September, after the permit had issued on a plan showing a compliant setback. A member asked whether the permit should therefore have been revised; the applicants said nobody told them the garage was in a setback and the builder handled the permit.

15. 42:37
    Public hearing opened

    Milt Simon (?) moved and Terry (?) seconded to open the public hearing. A member of the public, Cheryl Hagerty, asked whether the code enforcement officer had ever inspected the property; the current code officer said he was not in post then and can find no notes showing a site visit.

16. 42:37
    Attorney's point on scope

    Michael Malloy (?) said the violation is acknowledged and the property is otherwise in conformity, so the board should move to the hardship factors rather than speculate on how the mistake arose. A member said he still wanted to know whether the builder or applicant ever requested an inspection; the code officer said inspections are usually triggered only when the builder calls.

17. 47:51
    Public comment: the sellers' agent

    Cheryl Hagerty, representing the sellers, said without the variance the sale cannot go forward, the buyers would be left without a home and the sellers are making payments on a vacant house while living elsewhere. She said the board is right to grant variances sparingly but that the abutters are content and asked for compassion, adding that a consent agreement had been sought instead but neither the board nor the select board would take that route.

18. 47:51
    Public comment: the buyers' broker

    Tyler Stewart, representing the buyers, said his clients have already paid for one mortgage rate lock extension because of the delay, that it expires on the 22nd and they will have to buy another, and that work they need to do on the house cannot start until the matter is settled. He said the delay has cost the buyers thousands of dollars in fees.

19. 53:03
    Whether the garage could be moved or land bought

    Asked whether the garage could be relocated, the code officer said it sits on a floating slab which makes it harder but a mover might do it. Members recalled a previous case in which an applicant whose garage did not meet the setback was turned down by this board and instead bought ten feet of land from the abutter, a transaction not subject to subdivision law.

20. 53:03
    How the code officer checks setbacks now

    The code officer said in 2023 he would check stakes and any survey, but that he is not an authority on where a property line lies and tells applicants his measurement is a best estimate and that they remain responsible. He compared it to shoreland zoning, where he will take a measurement but tells owners to get a surveyor and that they carry the responsibility if DEP finds a problem.

21. 58:22
    Criterion (a): otherwise compliant

    The board turned to the ordinance criteria for a dimensional variance. On the first, whether the structure would meet the performance standards of the ordinance except for the provision creating the non-conformity, the code officer confirmed the property is otherwise compliant. Members agreed all four undue hardship tests have to be met for a variance to be granted.

22. 58:22
    Hardship test one: reasonable return

    On whether the land can yield a reasonable return without a variance, members said reasonable is subjective but agreed the applicants would not get a reasonable return, since being able to sell the property is reasonable and its current value assumes the garage. All four voting members indicated agreement.

23. 1:03:48
    Hardship test two: unique circumstances

    Members looked at the mortgage loan inspection plan and described the lot as a wedge or pie shape, narrow where the buildings sit, which they said may have made it impossible to meet all the setbacks where the garage was wanted. The orientation of the house, with the door on the garage side, was also cited. Two members supported it, one was not sure and one did not.

24. 1:03:48
    Hardship test three: essential character

    Members debated whether granting the variance would alter the essential character of the locality. Some argued the setbacks were themselves written with character in mind, so a reduction changes it; others said character refers to the neighbourhood as a whole, not the numbers, and that the zone is rural residential with other grandfathered properties at reduced setbacks. A member noted the undue hardship language comes from state law rather than the town's ordinance, citing the state statute read into the record as MRSA 4350.

25. 1:14:43
    Buyer's comment on character

    With the public hearing closed, the board took a comment from Benjamin Roach, one of the buyers, who said it does not follow to judge character by the ordinances when the whole purpose of a variance is relief from those ordinances. Members thanked him. A member offered the view that character means not putting a high-rise or an igloo among conventional homes.

26. 1:20:23
    Hardship test four: whose action caused it

    The board took up whether the hardship results from action by the applicant or a prior owner. Members established that the builder, Leroy Smart of Smart Home Improvement, signed the permit application on July 30, 2019 as the owners' agent, and that the owner is ultimately responsible for the permit. One member said the owner should have gone back to the code officer when given conflicting instructions; another said a town official who tells someone what they can or cannot do has a responsibility to follow up with the code officer.

27. 1:26:08
    What the submitted drawing actually showed

    Members worked through the application, which showed 90 feet from the centre line at the front and 50 feet at the side and back, and concluded the plan as drawn could not have been built on that lot. The back of the application states that all drawings must be to scale or carry detailed dimensions. Members disagreed about whether the conversation with the road commissioner is relevant at all, given the drawing itself was wrong.

28. 1:31:35
    What a code officer can verify at intake

    Members and the code officer discussed that at the point an application is submitted the officer has to take the applicant's figures on trust and verify later, and that even then the officer is not a surveyor and depends on the applicant for the property line. Benjamin Roach pointed out that the 50-foot dimensions on the drawing might not be wrong, since the line runs at an angle and the violation is at one corner, but a member said builders are expected to measure from the closest point of the building.

29. 1:37:01
    Agency and responsibility

    Members debated whether an error by the applicants' agent is the applicants' error, with an analogy drawn to acting on faulty advice from an attorney. A member observed that the town is a third piece of the puzzle because it accepted the application. Paul First (?) said his own view is that the builder was the applicants' agent because he built the garage, applied for the permit and signed it.

30. 1:42:38
    Attorney's closing statement

    Michael Malloy (?) said granting one variance does not open the floodgates, since wholesale rezoning is not permitted, and that variances exist to bring relief where a mistake was nobody's fault. He said the word agent does not appear in the ordinance and that the criterion asks whether the applicant did something that caused the problem, not whether they failed to fix the town's paperwork. He restated the equitable estoppel argument and asked that, if the variance is refused, the board record that it would support no enforcement action.

31. 1:48:17
    First motion and its withdrawal

    Neil Berry (?) moved to approve the setback variance on the basis that the applicants meet the requirements of section 17.3 B.1 (a) and (b) parts one to four, seconded by Milt Simon. After discussion about the need for written findings and the lack of agreement on some criteria, the motion was withdrawn in favour of voting on each criterion separately with reasoning attached.

32. 1:53:36
    Voting procedure

    Members confirmed under section 17.5 that a decision requires the affirmative vote of a majority of members present and not fewer than three, and that with four voting members a two to two split fails. They agreed all four criteria must carry for the variance to be granted, that the alternate cannot vote, and that the acting chair would also call a bottom line vote at the end.

33. 1:59:02
    Vote on criterion (a)

    Neil Berry (?) moved and Milt Simon (?) seconded that the property meets criterion (a), otherwise meeting the performance standards of the ordinance except for the setback provision, based on the code enforcement officer's statement that there are no other non-conformities.

34. 1:59:02
    Vote on hardship test one

    Neil Berry (?) moved and Milt Simon (?) seconded approval of B1 on the ground that the applicants cannot sell the property for a reasonable return. Members agreed to leave the applicants' personal financial circumstances out of the wording.

35. 2:04:04
    Vote on hardship test two

    Milt Simon (?) moved and Neil Berry (?) seconded that the need for the variance is due to the unique circumstances of the property rather than general conditions in the neighbourhood, including the shape of the property, the location of the home's entrances and administrative errors.

36. 2:09:16
    Vote on hardship test three

    Paul First (?) moved and Terry (?) seconded that granting the variance will not alter the essential character of the locality, which is zoned rural residential and includes other grandfathered properties with reduced setbacks. One member abstained and the acting chair noted it. In discussion the code officer confirmed that a granted variance must be recorded at the registry of deeds within 90 days or it is void.

37. 2:14:38
    Debate before the fourth vote

    One member said the applicant for the permit is the owner because Smart Home Improvement was working for them, and that owners are expected to keep track of permits. Another (?) said the town is responsible, having accepted the application without checking. Paul First set out his own view that the site plan was inaccurate and could not be followed, and that when the applicants received contrary direction from another town official they should have gone back to the code enforcement officer to amend it.

38. 2:26:01
    Inspections in practice

    The code officer described how he would use GIS or the tax map to judge whether a proposed building looks close to a line and would ask for stakes if so, and said inspections usually follow a builder's call. Members established there is no record of any inspection on this permit. The code officer said the application process explains the need for a final inspection and applicants sign it, but that many never call, and that an expired permit goes into the property file unsigned.

39. 2:36:29
    Burden of proof and property lines

    Paul First (?) said the applicants carry the burden of proof and that a statement from them may not meet it. He compared the situation to a timber cut over a boundary, where a court would hold the owner responsible for knowing where the line is. Another member replied that the people who could have been infringed have said they do not object and that mercy has a place, and members noted the abutter's letter.

40. 2:41:42
    Why the select board did not act

    Michael Malloy (?) clarified that the select board did not consider and refuse the no action letter; the item was put on an agenda and then removed, and he understood the town attorney had advised there is no consent agreement to be made because no enforcement action exists. Members discussed the appeal window to Superior Court and agreed that once a variance is recorded a later change of ownership does not disturb it.

41. 2:46:43
    Vote on hardship test four

    The motion, entered as written in the ordinance, was that the hardship is not the result of action taken by the applicant or a prior owner, moved by Terry and seconded by Neil Berry. Paul First (?) confirmed before the vote that a yes means the hardship is not the applicants' doing. Only Neil Berry voted in favour.

42. 2:52:06
    Variance denied

    With the fourth criterion failing, members agreed there was no purpose in a bottom line vote, since all four criteria must be met. Paul First recorded the board's decision that the variance is denied because not all of the criteria have been met, and that written findings and conclusions will follow as the ordinance requires.

43. 2:52:06
    Recommendation to the select board

    Milt Simon (?) moved and Terry (?) seconded that the Board of Appeals recommend the select board consider a no action letter for the applicants as soon as possible, noting the select board meets the following Tuesday and that the applicants would need to call the town office to ask to be put on the agenda. Members said this board cannot decide the question itself but can make the recommendation.

44. 2:57:55
    Applicants' remaining options and adjournment

    A member set out the applicants' options: appeal to Superior Court, ask the select board about a consent agreement although no enforcement action is under way, or remove the violation. Members noted the buyers would need to discuss title insurance and any future implications with their own counsel. The meeting adjourned at 9:02 on a motion by Milt Simon (?) seconded by Terry, recorded as 4-0.

What was decided

• 0:21
  Elect Paul First as acting chair for the meeting in the absence of the chair and vice chairpassed
• 0:21
  Appoint Neil Berry as secretary; moved by Milt Simon, seconded by Terry. The recording does not state the result, though the board proceeded on that basisoutcome unclear
• 42:37
  Open the public hearing; moved by Milt Simon, seconded by Terrypassed
• 1:48:17
  Approve the setback variance on the basis that the applicants meet section 17.3 B.1 (a) and (b) parts one to four; moved by Neil Berry, seconded by Milt Simon, then withdrawn in favour of voting on each criterion separatelytabled
• 1:59:02
  Find that criterion (a) is met, the property otherwise meeting the performance standards of the ordinance except for the setback provision; recorded as unanimous with none opposedpassed
• 1:59:02
  Find hardship test B1 met, that the land cannot yield a reasonable return unless a variance is granted because the applicants cannot sell for a reasonable return; moved by Neil Berry, seconded by Milt Simon. The recording does not state the result of this voteoutcome unclear
• 2:04:04
  Find hardship test B2 met, that the need for the variance is due to unique circumstances of the property including its shape, the location of the home's entrances and administrative errors; moved by Milt Simon, seconded by Neil Berry. The recording does not state the result of this voteoutcome unclear
• 2:09:16
  Find hardship test B3 met, that granting the variance will not alter the essential character of the locality; moved by Paul First, seconded by Terry. One member abstained and the recording does not state the result of this voteoutcome unclear
• 2:46:43
  Find hardship test B4 met, that the hardship is not the result of action taken by the applicant or a prior owner; only Neil Berry voted in favour and the acting chair recorded that number four had failedfailed
• 2:52:06
  The variance for the garage setback at 12 Rabbit Road is denied because not all of the ordinance criteria were met; written findings and conclusions to followfailed
• 2:52:06
  Recommend that the select board consider a no action letter for the applicants as soon as possible; moved by Milt Simon, seconded by Terrypassed
• 2:57:55
  Adjourn at 9:02; moved by Milt Simon, seconded by Terry, recorded as 4-0passed

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

• 15:42
  The garage at 12 Rabbit Road stands six feet from a property line. The code enforcement officer gave the requirement as 20 feet from side and rear lines and 50 feet from the front, but elsewhere in the meeting a 50-foot side figure was used and the permit drawing itself showed 50 feet, so the recording does not settle which figure applies.
• 21:04
  The applicants' case rests on the road commissioner, identified in the meeting as Calvin, coming to the property after the permit was issued and telling them to move the garage to line up with the mailbox and set the pad 90 feet from the centre of the road, saying the town would otherwise make them tear it down. The road commissioner was not present and members objected that the account is unsupported.
• 47:51
  The buyers' broker Tyler Stewart (?) said his clients have already paid for one mortgage rate lock extension expiring on the 22nd and will have to buy another, having spent thousands of dollars in fees on the delay. The sellers are carrying a home equity loan on a house they have moved out of.
• 2:46:43
  The application failed on the fourth criterion alone, whether the hardship was the result of action by the applicant, with only Neil Berry voting in favour. The disagreement was over whether the builder who signed the permit application was acting as the owners' agent, making the wrong figures on the site plan their responsibility.

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: 12 passages of motion language, against 12 decisions summarised.

Elsewhere

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