TranscriptBoard of Appeals Meeting ~ November 21, 2023

of the chairman and the vice chair not being here I will make a motion that Paul run the meeting okay well why don't we wait yeah until the meeting opens and all this and then you guys can y I'm not sure if I should thank you though or if I should come over and shake some sens no you're going to get it Liv in Kansas City bought a car to drive Camp the sum ands in my

said room I want to get close to you enforcement officer we are recording um uh live streaming on YouTube as well and it's you can look later on and uh see that on our Channel um so we have a quorum so um if we could just go around the room just say state your name um we'll start with Milt yep I'm Milt Simon I live on the stack Pole Road Terry K uh new Brook Road Paul

first Chesley Hill Road Neil bery stacko Road filber l um everyone is an active member Byron is an alternate just so you know um four is required for a quorum we have that um our chair is not present and it says in our ordinances that we can elect a uh uh interim chair or or temporary chair

acting sir acting chair yes that's right I make a motion so yes if we could have nominations I'll make a motion Paul first second he just second second any discussion no you're it buddy and a and a vote to show of hands all those in favor any opposed okay up so our chair our chair for

tonight is um Paul first dly elected by this B okay thank you Alan welcome everyone so um we you we usually start these meetings with a pledge and I'm just thinking just to you know honor what we how we always do it why don't we Civility and all those other

of the United States of America and to the for it stands Nation God indivisible with liberty and justice for notices have been duly posted in the newspaper and in the town office the website and so forth so that's been taken care of I Am the administrative person only for the board of appeals so I'm going to be taking notes I have no interest or say this cration goes uh I'm

here also to answer questions if there are questions that name Mr chair yes secretary do we need to deal with that um we might as well so I don't believe we currently have a secretary record so and the ordinance clearly states that we should have a secretary I make a motion you know be secretary who nail works for me I'll

second okay so we have a we have a motion here by Milt and a second by Terry for uh for Neil Barry to serve as secretary discussion yes uh normally Neil uh what they have done is the recording that they maken if you have any questions you can go back to the recording and kind of make your

think after the meeting yeah yeah okay all right so uh further discussion all those in favor okay um and I think also it might be helpful for us to talk a little bit about uh the alternate role since we're we're very fortunate I'm really pleased that we've got actually two members here tonight that haven't been here before both Neil Barry and um and Byron philb

and that's wonderful thank you both for stepping up and serving um so the way the alternate role is designed in the ordinance uh uh Byron is that if there's it were less than four members then we'll make a motion to appoint you to serve in that role um but I know traditionally when I served as alternate and I served for many years then the alternate was still able to ask questions you know and participate in some discussion but not not to vote that's my recollection is that your recollection to mil Terry okay so I think that's a good tradition you know for us to uh to continue um and so but we're we're really looking forward to hearing your thoughts tonight on the application and I'm sure there will be many meetings where you'll be called upon to also to vote and serve directly as alternate okay so we're here tonight to to uh to hear a variance request from the is it frev family FR family

okay free free free from the free family thank you um at 12 Rabbit Road related to the side setback of a garage um and is the applicant represented this evening by their attorney yes Council Michael M from Auburn okay Michael Malloy reminder to have your microphone pretty close to you when you're talking I and Terry are both here okay

yeah okay both applicants are here um is the Builder also here this evening no okay and we have a number of community members and there there is a public hearing portion of the uh of this hearing also and I believe we're also joined by by the real estate agent yeah y we all are part of the transaction okay yes and also the the buyers other agent oh very good thank you all right so um I'd like to suggest

that we start this evening um by just basically kind of agreeing on how we're going to what the structure is going to be or the review this evening I thought that might be helpful just to make sure we're we're all on the same page and also since I'm new new to the chair position um so my recollection is at these meetings that uh Barbara would always start with a list of the evidence that's and Gary that's been provided for the record just to list that out and that helps us when we're writing the decision include that information in the decision so all those things are there so I'd like to start there and I'd like to follow that by uh the case statements I'd like to hear a statement of the the issue or the case from the code officer um from Allen and then then from the applicant and then the applicant can come up and provide their their statement and the issue as they see it um and then for us to have an and for us

to let them make their statements and after both of them are done with their statements we can uh as board members ask them questions you know ask them questions um and then to follow that by the public hearing then we'll open the public hearing and allow any members of the public that are here that would like to speak to speak close the hearing followed by any further discussion and then we can um you know do things like look at the ordinance and the criteria in the ordinance go through those and hopefully come to our decision and findings does that make sense to everyone here this evening

have a few additional submissions of evidence we like to offer to you have to do that when you're ready for us or if you're G to go through that well I'll tell you what why don't I get why don't I put into the record what we've got so far and then you can make your additional submitt okay excellent okay and Allan you're GNA have to help me here because we've had a number of different things first first packet that was presented to the town yep okay we have that first packet and what did that first packet include um that's this cover sheet a

application to the appeals board okay by E yeah the next stage is a plot plan that shows um the property and the survey done by a foundary survey I believe done by the mortgage company inspection the next item um is the for

building permit you see that the front like this okay now this is information that was submitted since our this is the okay that's the initial we're still on ini isue y okay I yep I got got so so get back on the application so the building permit application which is very similar to the existing the second page of that building permit

Builder PL plan by asart Home Improvements and then some rudimentary drawing rudimentary drawing of the could just stop and ask what probably a silly question here Eileen Knight and Eileen free is I when I bought the property back in 99 I was n okay okay so

and then we didn't get married 2015 I see okay great thanks for clarifying that okay all right what do you have next F okay so that's the first thing and then um Matt the Matt are you here Matt um presented to me this week and asked if they could submit other information um and I said yes so that is

uh this packet request for VAR 12 RIT Road it's like this okay and want to I I I have only briefly looked at this does anybody want to talk about what's in that um well let's just go by the titles on the cover page if we could summary of requests for variance mortgage loan inspection Sur or loan survey showing setback insufficiency request from tragi and Bachi for no action letter approve building permits signed by code enforcement officer so some of this stuff is duplicate from what we've already received and oh it says then it says new attachments application of original building plans that's also additional okay six uh letter from a budding neighbor seven letter from buyers of 12 Rabbit Road and if I could just go back for a moment and also say I don't know if you covered this Allan but the other thing that we have here as part of the record is

the abutters we have a public hearing notice yes and and um the notified yep and then what what type of uh documentation do we have that abutters are notified have been notified I have certified ma receipts okay yeah the last meeting sure okay

y okay so I think that should bring are we overlooking anything no one one other piece there's affidavit yes I've got them right here have I have an Affidavit of Eileen free yeah and I don't have you have I also have Affidavit of Terry free

uh I have one attorney Malloy have we overlooked anything that you have presented to date to date I believe that's the broker submitted that I have a few additional items okay very good well I think we're ready and I just have one thing um uh initially they asked me for a letter of um uh hold hold harmless letter basically um or no action no action letter so I I actually uh in my previous role in the different town I was authorized to do that I did that I created that letter uh presented that to the select board and they would not they did not want to progress with that but they said it should be coming to the board of appeals okay uh it's my PA yeah

it's my understanding that we don't have the authority to Le issue a letter of they've applied for a variance they've applied for a variance rather than a no action letter they've applied to this board for a variance rather than no action letter they applied to the Selectmen for a no action letter and they were turned down and they were turned down that's my understanding or they were I don't know how far it got would let us even I see and in your ordinances it states that it should go in front of the and and but I will state here before we get too far because uh we are recording the meeting for a public broadcast uh before we get too far into statements and everything we want to make sure sure that we're able to bring people up and they can respond but thank you for that okay so um let's see yeah

uh uh attorney Malloy what do you have what else do you have for us if you're any for me now I don't are you fin yeah come from the code well no no we're not okay okay but if you have additional information if you could just give it to us now sure and then we'll hear from Allen and then then you can do then you can do your overview sure I prepared just a summary letter for the board okay yeah and then I

permit application that they have this whole packet so that would be duplicative the additional items okay very good thank you thank you all right so we have um a letter from Malloy firm and we have some uh summaries of other

right so that brings us down to the case statements um usually we start with the code officer and just ask the code officer to explain briefly uh the case to us and how we got here okay uh so I did get a call um asking to look at an email or

call I can't recall which um asking to look at the information provided um about a garage at the site of 12 Rabbit Road uh it was built in permit they went through the process um to get the building permit they issu the permit they built the garage um and there was no issue however they're now selling the property and the mortgage inspection was done and the mortgage survey came up with a problem or a violation of our ordinance in that the garage was six feet from the property line when it should be um 20 ft from the property line so the requirement in all district is 20 ft from the side and rear of the property lines and 50 ft from the front property lines so there definitely was a a problem with that they asked for a letter from me which I prepared to

the select board and what else would you like to now and I know I have a few questions but I I mean I personally I don't want to get too deep into questions since until I've heard from both parties so I'm fine is it okay if we guys if we move on to the applicant and then we ask our questions okay good yeah come on

of the board Michael Malloy um and I've been working on this for only about a week so forgive me if there were things that predate me that I can't speak to uh first thank you for serving your community um this is often a thankless task and I just wanted to acknowledge that and also thank you to your code enforcement officer who's been helpful to the brokers in trying to find a way forward through this transaction my understanding is that Eileen and Terry came to the town in August of 2019 and applied for a building permit to put up this Garage on their property that's the uh sketch that you have right there which has some of the dimensions there that I believe would have met the setback requirements they came in they applied for the permit Terry was in the town office and at that time the road commissioner commer said I will come down and take a look at that with you and this is in his affidavit and followed him to the

property and said you actually need to move the garage closer to the line it should be lined up not with the house but it should be lined up with the mailbox can I stop you right there and I I just think that this point kind of needs clarification so was this at a time when the Public Works director was serving in that role as code officer why was it was and you're this was the initial when when uh when Terry came in for his building permit right he initially interacted with Public Works director rather than the code officer he can speak to that no I believe he was coming in applying for the for the permit with the code officer and it was the road commissioner who um said let me

go look at that with you okay so he said okay come on down yeah and the road commissioner said no that's wrong wrong you need to move it close to the line it needs to be lined up with the mailbox right on the road and if you build it where you're planning to put it on your application the town's going to make you rip down that garage so they and this is the Crux of their case they moved the location of the garage closer to the boundary line in response to a direction from town officials okay for the uh Public Works

guy the that was the road commissioner I can't I don't know his name we've only had one in that time so it would be Calvin yeah Terry can speak to that and he describes that in his affidavit I'm sorry I don't know his name um the garage got built there was never a final inspection done on it nobody took any enforcement action or contemplated taking any and it's to my knowledge the town was unaware of the apparent in encroachment until this mortgage loan inspection plan was done uh incident to the sale of the property and at that point uh Terry and Eileen learned that they were going to have difficulty uh conveying this property and so that brings us to the town and so through the Brokers people have been trying to find a way forward um and certainly appreciate the uh the code enforcement officer effort with the Town Council they were just really looking for something to hang their hat on so that the that transaction could

close incidentally this is the second attempt to sell this property the first one fell through I'm not sure exactly why it's my understanding they got through uh conditions of the building inspection were all fine in terms of its physical makeup but that that sale passed and this is now the second uh transaction uh that's under contract contract the buyers are firsttime home buyers looking to move to the area so they're going to have an FHA mortgage which requires title insurance so they they have a whole um mli that's been done as part of that uh it's also my understanding that the abutters Do Not object to the grant of this variance but our our request for the Varian is based on the fact that there's been no um adverse action contemplated by the town to my knowledge the only issue is this garage which was placed um where the town told them to place it as a result of that they're not able to

sell this property for fair market value and they have a home equity loan that has continuing monthly payments that they have to make which they're not able to make uh unless they can sell this property so they will suffer direct uh adverse harm if they're not able to uh obtain some form of relief from the town we believe this meets all four of the requirements for a hardship waiver in your ordinance alternatively we also are submitting the case of degier versus the city of Auburn which deals with the issue of um Equitable estole and that's a principle when in response to a direct

statement from a municipal officer residents take action with respect to zoning compliance to their detriment based on a mistaken reading of an ordinance by the town official that the town cannot then use that mistake to take enforcement action against the residents so I've summarized that in my letter for you and giving you a copy of the decision for you to consider I realize uh one can't necessarily digest all of this right now but perhaps in your continued deliberations that may be useful for you but I think we meet the test for a variance but even if we don't I I think that's a pretty close um match for the facts before here that case also addresses uncertainty about the role that the municipal officer occupied at the time that the statements were made uh in a footnote I believe on the first page so the issue isn't so much whether or not um the road commissioner was the right person to be ruling on the issue

or whether he acted outside of his authority normally in saying this the point is he was an official of the Town who told them you'll never be able to keep this property up if you build it here um excuse me and keep this garage up if you build it here and so they went and they built it where we told them to and so now they've um they've been harmed as a result of that that's essentially our argument I'm happy to answer any questions Eileen and terer here they can help with the facts I believe that the um the Brokers are here as well as the um intending purchaser thank you okay yes so yes uh like to recognize initial question is everything is so well documented I mean thoroughly documented but there's one thing that's missing and that is is B it's here say and that is this road commission or Public Public Works commissioner everything that's been said done whatever is documented so without hearing from this

Road commissioner Public Works commissioner saying indeed he said what he said or instructed what he instructed or what was his fra what was his rationale or reasoning for doing it that that's a big void in this argument may I respond to that yeah I would just say that I don't believe we're under the formal Rules of Evidence in a hearing like this and they're here testifying to what they heard and what they EXP experiened their direct Impressions from the town same representations and those were also similar to the ones that were made in the deg gr case so I would just say if the town has competing evidence um we're happy to to hear that I have a question yes uh I've heard

two things here one is that looking for a variant then he just mentioned hardship what is this well the hardship is uh a requirement for the variance oh so Vari are we doing a hardship or a variance well no it's a a variance is hardship it's one of the criteria for approving a variance is hardship and once we get to that point in the review we're going to look at those criteria that I believe uh attorney Malloy mentioned and uh we're going to look at

them together to see if we if we believe that they meet those criteria we're going to go through them all once we get there okay yeah but that's one of them is hardship it's you know it's a good question and that's not always so easy to you know determine well what's a hardship and what's not but I'm I'm sure we'll have a good conversation about that when we get there I have a question okay uh Neil Barry um so the the drawing

he initially submitted was that correct I I believe that met the 100 um enforcement officer whether it was correct at the time but what seems like it wouldn't be room to move for 50 ft between the garage and and the boundary he he had 50 feet between the garage and the boundary right on his drawing so the code enforcement the uh Public Works guy said so said Put it within six feet oh he said he said line it up with the mailbox but at the same time the drawing shows 90 feet from the road I believe does how far is it from the road in the drawing or 50 it says 0 says 90 yes yeah

so so it have been more 50 ft back yeah okay so let's just take a step back so the Public Works director said uh at the site that it had to be 90 ft from the road is that correct no he said that put it within six feet of the road within six feet of the road he said put it where it is now I don't think

introduce yourself first just Terry I'm P owner of the property on 12 r Road and um the um originally when we wanted the garage built we wanted wanted the front of the garage to be even with the front of the house okay the front of the house is 75 ft from the center of the road okay and that's where we wanted the front of the garage yeah so when I came here because I thought I needed the permit to put in a driveway which later on he said I didn't need one but anyway they directed me to the town garage to talk to the road commissioner uhhuh so when I got down there I T talk to him and he says well where is it and I says it's that 12 Rabbit Road he says well I'll follow you down there and we'll take a look at it y so he came down he looked at it he says I want the driveway as close to the mailbox as you can get it because that's the high part of the land and he said he wanted to make sure that the water

runoff would go away as close as you can get it to the mailbox because the the Land There was like this and both size went down like this and then at that point did you go to the town hall and submit your permit application the the contract to put in for the permit for the garage and did that happen after you met with the I don't know okay I'm just go I'm I'm just telling you what I know but he said as close as possible as close as possible to the mailbox because it was on the

high side of the front of the property what what is suppos possible with the driveway or the garage the mail the mailboxes as his mailbox is on the high side of the property the in other words where the mailbox is the property goes like this so he didn't want it down here because he said it would interfere with the water runoff so he wanted it on the high side which is about where we wanted it anyway we had to move it over maybe 3 feet this is the driveway you talking about the driveway yeah so So I says okay we can do that he says and I want the garage the the pad Prep

Prep work for the garage 90 feet from the center of the road that's he's the one that said 90 feet mhm we wanted it we wanted it 75 and if if it would have been 15 ft closer to the to the road it would have taken the back of the garage probably complet out of the setback Zone what is the front setback in The District 50 ft 50t the property line okay yeah and is it a three Rod Road I'm not sure measurement of the road rabber road three rods or four rods I don't know we know I can't speak to that okay so I'm assuming it was probably three rods I don't even know what a rod is uh approximately 16 ft I think it's okay well if it were a four Rod Road Road that'd be 50 ft 50 plus 50 would be 100 I don't believe I don't believe Rabbit Road is that why I don't think it is either I think it's three rocks I measured from the center of the road to the house and it's 75 ft yeah and that's where we want that's where he

wanted right 75 ft from the south when was your house built 1999 mhm about 2,000 I think right in that area okay yeah so um do you remember if the the the road the public works is it a public works or Road Commission that have e come up she might be he said he was the road they told me the road commissioner and did he give you a reason do you remember him saying why he he didn't want it where you wanted but he wanted it 90t back he didn't he didn't give me a reason but I figured you know he's the town official he's telling me to back it off I I I'd like to slow things down here if we could and if we could direct uh to Allan and ask

Allan why the code enforcement officer would have said 90 ft what what his code officer or I'm sorry Calvin yeah thank you why Calvin would have said 90 ft I don't know why what would you have said I would have said it needs to be 50 ft from the property line okay and if it's a three r Road what would that make it I would look for p if they had pins or would look at a pin look at their pins and measure from the pins if they didn't have pins I would have to look at where I thought it would be and some off the road measure from there okay and measure 50 ft and I would always tell them you should really put that 52 feet or 53 ft away from the setback just sure because we don't know if we don't know where that is he said from Center Line what is Calvin said from Center Line it 90 ft from Center Line so what is half of a three rot road I don't know anything about rods I don't rods all right would be what 25 ft be about 25 ft yeah

I think yeah right so be about 75 ft right okay so 25 ft is a uh 20 foot right of road yeah roughly 20 ft depending on the width of the the road yeah yes okay I think and so now we're talking 40 ft so we don't know exactly but it sounds like it was kind of a uh was an exact number it may have been a more approximate number the 90 ft um so you take party

from 90 is 50 ft from the center of 50 ft from the property line I got I got to say that probably that's where it should have been roughly 90 or we don't know from the Center Road or 50 ft from the propably line uhhuh which would have

been uh 90 ft less [Music] uh right so we don't have but of course as as uh Allan noted you know the road isn't always in the center the right way exactly right we don't know the road within ft one way the other what I would do today is first of all if I ask for a survey we had the survey we we' locate the pins and we'd measure the pins and measure from where the pin set the property line is that's where I'd measure the set back and always say if it's we're measuring 50 fet I would suggest you go 52 53 ft right before you put your building yeah so that's that's the way I would do it if there are pin and and that's the way it is a lot of times and you don't know where the property line is yeah you're going to give it an estimate and you're going to air on the side of caution yeah don't be into the setback yeah don't be don't encroach on your property of your neighbor those chrisan okay yes Neil do

you remember when this conversation happened when yeah um sometime in September um of uh conversation um the enough for that one okay um he gave me a name of a contractor to do the driveway and I think he was a I think he was present because he knew the garage prep work and be 90 ft from the center of the

road okay so um and at some point the the Builder uh went to the code officer and submitted a permit application right okay he took care of that okay um at any point so you felt there was Clarity in the application well you

know I I guess one of the things I struggle with here is that I'm not sure could you build this garage the way it's represented on the building plan I don't think you could could you well I'm thinking if the code officer said we could then we could that's what permit was issued yeah he gave us a permit I mean and we're we're acknowledging that it encroaches

the building permit application was submitted on August the 6 right was approved August the six was a well I'm seeing the date of the application is the 6 and I'm also saying a permit was issued on August the 6 so both seem to happen

the same date um but then but I think I heard you say that your discussion with the um Public Works person was in September remember yes so he would have he would have suggested the change after the permit already stated that um this was within the setback of 50 ft so if he had said it had to be changed wouldn't wouldn't the permit have had to been

interesting question if it became evident to the Builder that it wasn't possible to build the property um you know according to the plan and the permit did the owner or the builder ever go back to the code enforcement officer and say I need to revise my permit because this you know this doesn't told us that it was in a setag Zone nobody ever told us it's in the set bag Zone if and when I got the permit for the driveway in September uh right it was because that's he he couldn't start the he couldn't start the garage in August so he gave me the name of a contractor I got a contractor to come in and and do the driveway but was in September if you're reducing the side setback and making it less than uh is on your site plan wouldn't you go back to the code officer and ask is this okay he had just told can I do this he just told him where to put it and what to do who who told him the road commissioner commissioner okay the road

commissioner doesn't issue building permits no but he's a town official who is representing the town and he's one telling him you have to move it here we'll tear this down yeah and so they're responding to that representation of the town he's not saying you need to go back and revise your permit application he's not saying you know this is what a setback he's saying put it there or I'm going to tear it down so that's what they did question

so and I'll just repeat the question okay thank you thank you no more questions for now until I think we open the public hearing or we have you come up if that's possible just so we make sure we get everything not part of yeah okay very good um so the question was

and the the question was from Linda flarey is that correct I'm sorry your last Cheryl hag oh Cheryl Hagerty thank you and um the question was did the code enforcement officer ever make an inspection or come to the property right I did Town ordinance and that was that part of okay thank you um thank you for that question things like this okay so

Allen whether the the code officer ever made an inspection I wasn't here at that time and I don't I don't see have you looked at the record yeah I don't see any notes that said any that he feed on site okay thank you can I just ask a question I I don't want to interrupt your your trainer thought but we're acknowledging that there's a violation I don't think the issue before the board is whether how a violation came about other than the fact that they didn't cause it um you know we acknowledge that it's within the setback requirements the property is otherwise in Conformity and so at that point for the question before you want a variance I think it's appropriate to move to the hardship factors rather than speculating on why the town was misrepresented or not I mean the fact is you know there's been a mistaken representation on behalf of the town right which they then relied upon to their detriment i i i

acknowledge that it should have been caught but it wasn't and it's not the their you know it's not their responsibility to to tick every box for the town that way um I would nevertheless I would like to ask the question whether the Builder or the applicant ever asked for an inspection yeah the building yes I don't know he took care of the permit and um that's all I know he he said he'd take care of the pent and he came down and got the okay did he ask for an inspection I don't know typically inspections aren't triggered and until the Builder calls and says I'm ready for an inspection can't speculate as to the town's usual you know practices on that

drawing was submitted if was part of the application not but it has 9 foot setback on the drawing so I think the conversation with Calvin if that's who it was is irrelevant yeah I agree with Mr M I think we should move on to Y very good okay um let's see

here any other questions yes for the applicants before we move on before we move on as a point of interest on the on the original application there was a there also 90 foot set back from the front I don't know what that means property line setbacks F feet on the application y that's 90 ft from one I I'm guessing it says the it's from the central line but that's not what the ordinance reads that's what the drawing shows to so it's at least [Music] consistent okay um so before we move on to the criteria in the question of hardship I think we should also hear you know if there are any other uh comments from the public or from anyone else here this evening I think I think that um some of the other interested parties would like to be heard I believe on on hardship um related to this Eileen do you want to speak anything more yeah we're gonna first we're gonna open oh yes thank you just yeah I do you want to

say anything more um I think we've covered with that if I could just have a motion in a second to open the public hearing I'll make that motion okay in a second I second discussion all those in favor all right so let the record show that was Milton Terry

now open at anyone else that would like to speak please come up and say your name if you would and uh uh who you are or where you live hi Sher Cheryl Hagerty and I'm here representing the the sellers and I just want to vouge for if if you guys don't give them this variance they really are going to have a hardship number one the buyers are going to be pretty much homeless and um as you can see it wasn't

something they did intentionally yeah I don't know know who who's to blame 100% but it it's happened so without the variant they can't move forward with the sale and it's been prolonged for so long we have some things that need to get done before the sale is con um consummated like um so like a roof and stuff like that um but they'll definitely so they have a payment on the house that's vacant they're in a different house and so they they don't have a lot of extra money to to make the payments so I don't I don't know what's going to happen and not everybody wants to be a landlord you know I guess that could be a possibility but you know they they really need the money out of the house so the bottom line is how and I know what you guys are thinking you know you're on this committee and you don't want to give variances you want to do it very minimally because you don't want everybody and their brother coming here

and and doing this but I do feel like you know Mr M voice as they do meet the hardship requirements and it's unfortunate that you know we have to come here and ask for this but um we are all human too we do have to have some compassion in these situations and I'm hoping that you guys can have that for them I mean um because it's not really going to hurt anybody at this point the neighbors are okay with it and it's you know what's it going to do you um you know what what is it going to do to detriment the town to just you know give the variance um we did try to get the consent agreement instead which you know I when I read the ordinance it looked like that was the way to go but you know you guys don't want to do that the select board doesn't want to do that so so this is why we're here and I'm just hoping you guys have some compassion in the situation okay thank

okay thank you is there anyone else who'd like to speak I'm having some trouble with the connection please try again sorry okay yeah Siri you're not recognized uh my name is Tyler Stewart I represent the buyers in this transaction and I just want to let the record show and just make one final uh point to the fact that the buyers have already signed a rate lock extension at the expense to them because of the delay of this transaction given not only the process but also the failure to meet at the last meeting on top of that to Cheryl's point we have continued work that needs to be done that we can't start or or are waiting to start until after we get this figured out their current rate lock extension expires on the 22nd so they will need to sign another one as well which will be another expense to the buyers so not only is it a financial burden to the sellers it's also to the buyers as well because

they've had to pay thousands of dollars in fees to extend this process longer than typical so just wanted to make that I'm sorry did you state your name for the record I may miss Tyler Stewart Tyler Stewart thank you okay buyer broker yeah got that thank

evening that would like to [Music] speak all right then let's move on so um close the hearing yeah I'll go ahead and close the hearing I don't think I even really need a motion to close it and I will close the hearing at 6

on okay so here see where we're at all right so um further questions for either our code officer or the applicant does anyone have any further questions at this point I have a question even though the uh contractor drew the building

is not the owner of the property still owner is the responsible party even if they hire a contractor the contractor is working as their agent and I think in this case without even seeing a contract I would say the contractor built the garage and that's accepted so the contractor is the owner's agent would that would you agree with that yes yeah okay

questions question for Alan is is is there an is there an option available to move the I know houses can be moved so if it's a current although it's a garage it's it's on a floating slab slab that's a little tougher but probably a mover could do that I'm not sure I remember a while back Cary footman I don't who remember Carney footman I think she was she may have been before my time she was the mother of the town uh came to us because her garage didn't meet to set back okay and uh the appeal board turned her down and suggested that she get a hold of the but

yeah yeah and buy 10 ft of land the butter transactions aren't subject to subdivision law right yeah okay and that's what she did and then on she was okay uhhuh okay y you know what I mean how long ago is that I'm curious it was a while back y okay I remember I've been on the board a long time but we're lucky to have you right yeah yeah yeah okay thank you I appreciate that Jerry [Music] uh other questions from either Neil or from Byron I

typically take a look at the drawing submitted on something like this and confirm in 2023 absolutely I would check Stakes because this kind of thing comes there I'm standing there there may not be a property line that I can see yeah there may be Stakes that's great if there's a survey yeah awesome but I'm going to make my best estimate but I'm going to tell them also this is only my best estimate based on what I can see I'm not an authority in this situation because I don't know where that property line is so you are ultimately responsible so the best way to check it lots of times when I check for um Shoreland zoning measure Shoreland zoning people want me to do it because I the town pays me but I'm not an authority on that I will check that property line but I'll have them check in Shoreland zing and say I asked the code officer what we should do and he said I should get a surveyor to delineate The showand

Zone but we wanted to use the show the the code officer's opinion instead and I am not an expert in that I will do that for you but I'm not the expert and you are the person ultimately responsible if DP finds those kind of things out you are the person responsible I'm not

something in the land use ordinance where you don't have to go to the planning board is there a survey requirement survey requirement you'll say put grade Stakes where the line is where you think the line is I'm going to tell people to talk to their neighbor and come to an agreement where they think that property line is and we're going to go from there uhuh okay not a great situation yeah yeah okay thank you all right so additional

good so um why don't we move on to the criteria the variance approval criteria and the ordinance does everyone think we're to that point to look at the ordinance yes okay let's do I've got them yeah you if you would if you would start with and read starting with b on page8 dimensional variance the board of appeals shall not Grant a variance from dimensional requirements unless it finds that a the proposed structure or use would meet the performance standards of the ordinance except for the specific provision which has created the the non-conformity and from which R is s and okay hold

on um on one everything's okay except for the non-quality that's what that statement to us okay y okay the strict application of the terms of the ordinance to the petitioner and the petitioner property would cause undue hardship the term undue hardship is used in this subsection means the land in qu one the land in question cannot yield a reasonable return unless yeah yes let's stop right there all right do we need to go any further than what he just read on div dimensional variant yes yes we do we have to apply these four CR criteria in the ordinance that he's going to read out we're going to go through them one by one I think and try to come to even say we can't Grant the variance we can grant variance what's that we can grant the variance no I think I think we can if it meets the criteria board of appeals shall not Grant a variance from the vention required unless it find

dimensional requirements unless it finds that right okay so let's look at a first the pro proposed structure of use would meet the performance standards of this ordinance except for the specific provision which has created the non-conformity from which relief is sought okay let's ask the code officer do this is this property otherwise compliant yes thank you all right so I think a is met right so let's move on to B the strict application of the terms this of this ordinance or the to the petitioner and the petitioner's property would cause undue hardship the term undue hardship as used in this subsection means the land in question cannot yield a reasonable return unless a variance is granted okay stop right there the landing question again these are four tests for undue hardship now my interpretation of the ordinance is that it has to meet all four tests yeah and are is is everyone on that same

page yes okay because it says unless subject to individual interpretation okay what do you think I agree okay good all right very good so um number one all right the land in question cannot yield a reasonable return unless a variance is granted okay so under hardship yeah I'll put that for discussion does this does this uh can this land uh yield

a reasonable return if if it's not granted are we discussing this yes I think so yeah so so reasonable is subjective yeah okay in my opinion they meet this they meet this yeah okay very good yes reasonable return they I'm saying they would not get a reasonable return unless a Varian is Grant y very good okay Terry uh yeah I can I can accept that yeah okay very good okay I I would concur with you folks yeah um they're trying to sell it's reasonable to be able to sell your property I would think yeah well I'm sure the value of the property right now includes a okay okay so um Neil what do we have next so

it seems to meet number one be some consens need for variances due to the unique circumstances of the property and not to the general conditions in the neighborhood and okay the need for the variance is due to the unique circumstances of the property and not to the general conditions in the

of unique circumstances y could we repeat that there's a lot of unique circumstances in here and I'm I'm in inclined to support the appellant the what they what they're looking for okay well let's take it one at a time if we could the general condition neighborhood have nothing to do with tell tell me about the lot what's unique about the lot uh I don't know there's a whole lot unique about the lot um except obviously that um well let's look at the let's look at the lot PL for the mortgage loan inspection okay and see what the lot looks

is where they wanted to put the garage in terms of the setback it's kind of pie shaped there where they wanted to put the garage the setback requirement may have may have excluded the the ability to meet the setback requirement from the rear you where they want to put the garage it doesn't look to me like you possibly could do all those things things like you could meet all those setback requirements in the permanent but um so I would say what's unique about the lot I mean it looks to me like what's unique about the lot is it's this kind of wedge shaped triangle so you know it's kind of narrow on the sides there where the buildings are

currently is your front door on that side of the garage oh I'm sorry I should be adding you oh that's okay is your front door in the side of the garage front door the front door when you faces so it's it's convenient for you to get out of your garage and walk into your house where the door is now yes uh yes that's why the garage went there yeah but you got it okay so the garage went on that end because that's where how the house is oriented [Music] yeah

did we vote on that well I don't think we have to vote on these individually necessarily I mean of course we could but I'm happy with consensus and a bottom line vote on the variance I think that's usually the way we approach it without getting too too much into minutia I think we're getting what we need so yeah what do you guys but we haven't heard from you guys so I I mean personally I I would agree I think the lot has some unique characteristics that could support number two so I would I would be a yes on number two okay it's are you a yes on number two okay so uh Milton

Terry yeah okay I'm not sure okay okay so we've got one three the granting of a variance will not alter the essential character of the site visit haven't had a site visit or something like that but I think this this is uh if I'm not mistaken i d by there all the time okay this is a general yeah I drive by that area too it's a you know it's kind of your average uh Durham neighborhood I would say and Ral residential Zone rule

residential lots are two acres plus um there was a letter from an abutter from The abutter Who who said that they wouldn't object to a variance um at least on that lot [Music] line so you know six again we're talking 20 from 20 which is the ordinates to six so it's 14 a difference of 14t when when discussing number three not altering the essential character of the locality do we need to anticipate

um setting precedence [Music] um I think it's a case by casee basis I think you know you have to evaluate each case on the merits is there any kind of buffer I'll have to ask is there any kind of buffer between the garage and property line is it vegetated or is it cleared what's it vegetated with trees okay uhuh okay well if you move the garage forward

okay so if you move the garage forward to have the same character it has now uhhuh Forward right because that's what you would have to do if yeah but is the challenge is I think if you move it forward if you were to move it forward 14 feet it might it may violate the front set back that's kind of the can maybe we don't know maybe maybe but my argument still same yeah it wouldn't change

it changed the okay y that's fair enough word character is subjective it it it it goes against what is what it states in in in the ordinance well that's my feeling I don't think it was referring to the ordinance it's referring to the character of the of the town and the lookout it's a rural you know we're a rural community we have a lot of two acre lots we have a lot of larger Lots you know they we have smaller

locks too we have some Lots there are significantly less than two acres that kind of a mix what do you think Alan I I mean you know you get out there you see this town you visit a lot of different properties I'm just kind of curious you know of course you know you don't have a vote in this but where what do you see in terms of there are other properties that are Grandpa as you just mentioned that do not violate the setb because they're grandfather right okay so there are other houses that have similar situations like this yeah not identical but similar fair enough

hearing from um from Terry and from Milt is that you guys are a little on the fence you're not sure on the character piece no I'm not no to change is going to fix the character of the of the location it are 20 ft C this isn't talking about the rules this isn't talking about the rules it's talking about the character of the land and and the and the neighborhood well I think if we start setting preceden here we're going to be in

ft go here today well let's uh I think what's important is that we let the ordinance guide us and we've got some criteria in the ordinance and we're not all the way through them so I'm trying to keep an open mind until I get to the end okay yeah so the word character is kind of a broad word to address Neil so who whoever

wrote the ordinance and came up with the setbacks they had character in mind they had character of the um lo location in mind and that's why they came up with whatever setbacks they came up with so what's the district what's the zoning District sorry to interrupt but what's the zoning District rule residential right right but we but but Dimensions were established for a rural for a rural District right I this was written y so someone came up with that it needed to be what no matter what the number was 20 ft 50 ft whatever those numbers were when when whoever came up with the numbers of what those setbacks or placements or whatever they had character in my in mind for Rural

Playing devil's advocate so when you say it's not affecting the character well if we were to go back in time for those who set up those those guidelines they would might say well you are changing the character because otherwise we would have said you know six feet was good enough or 10 feet or whatever but they came up with specific numbers they had they they they had they had discussion there was logic behind those numbers well you're thinking it's good but it's wrong because the wording comes from state law they just a state ordin state law not it's not a municipal ordinance it's a state law that we adopted so they weren't thinking about in terms of the criteria the definition of it's right in mrss 4350 okay yeah it's not it's not a town ordinance it's a state law well no but not the setbacks he's saying he's saying the the setbacks were so part of it is part of it the town established the setbacks is they yeah but the but

the thinking of it the thinking of a central character is not specifically regarding setbacks it's a to me the whole picture the big picture of of any uh yeah yeah okay well you know again this is I think as Milt said character is subjective and I mean I don't think I I'm not even going to look to see if it's defined in ordinance because I know it's not I just looked up the definition of character oh and as related to Neighborhood okay yeah go ahead neighborhood character is an analum of various elements that give neighborhood it's distinct personality M okay yeah um I think on this one you know I I appreciate all perspectives on this and um I I in all interpretations

because I think it is highly subjective but I'm not going to draw I guess I personally I'm not going to draw the line on this one um I think I think it's probably close enough okay uh did you have a thought my just one one one thought about character in in this application to me that to me when I hear that being said it it's more of you don't put a highrise in this neighborhood or you don't you know you don't come into you know a place where we built a certain style of homes and then put in something that different you you don't put an igloo next to you know all these regular homes or like I said a highrise or something like that to me is character yeah in BO Hill subdivision yeah all right careful now so that was just my thought about character uh yeah thank you that's helpful yeah okay all right am I um public hearing is closed but anyone have an objection to app point from and I'm sorry you're

one of you're the buyer yes okay any objections to hearing from the buyer at this point but I don't have an objection okay please if you just say your name uh yes uh my name is Benjamin roach one of the buyers um I'm sorry Benjamin Benjamin roach roac okay U my only point on this character concern is you're saying that they set up the ordinances taking character into mind that doesn't totally make sense to me because this is to get a variance on those ordinances so the character I believe is something considered separate from that okay as they're saying the fuel of the land because it's specifically referring to getting something corrected in violation of that uhuh okay so I don't think considering the ordinances as far as the character makes sense in this case Okay that was just my point that I would like to make yeah thank you thank you for having that we appreciate that

um yeah and you know these uh these you know these situations are never easy to resolve and that's why we're all here and uh I think everyone I I think I speak from for everyone uh when I say that uh it really helps to hear from all the different parties and take it all then before we make a decision so thank you for your comments okay Neil I so you know I think that we have you know where we are on that is we have one no we have one I'm not sure and we have two yeses okay yeah

all right so let's move on down to four Neil if you could read that for us the hardship is not the result of an action taken by the applicant or prior owner one the applicant or prior the okay M and that's why I asked a question earlier of Allan who would resp responsible for the permit okay uh and the

basically the liable for the permit oh even though it was signed by the build or it was taken out by the build take drawn by uh smart yeah okay yeah that's why I asked that question the Builder was acting as an agent of the owner yes yeah

blame the owner but as Terry said the agent acted on behalf of the respons the the owner responsible I can see I know the own this point I I can put myself in that same position you you put your trust in someone who this this is what they do for a living and they say you know you're good to go so you believe that they're good to go and then you know you get haunted Years Later by uh mistakes that weren't their

would not have been updated if the permitting all happened in in O in August and then this town official you know said yeah we can't do that and and and and said this in point what if if it had been a town clerk or or the fire chief or who anyone could have said nah don't do that you know I'm gonna come I'm GNA do something nothing it it it has to be it has to be documented in the permit everything we do is documented um

so to revise the permit how does that happen how does the permit get revised you go to the code of Fortune law and say look we got a problem this is what we got to do well I go or or you there's a meeting of the minds and you say you know you get the code of for and said this guy says it's not okay and this guy says it is okay and this guy says I can do it I can do it either way what what should I do is what I would be doing as an owner I'm hearing I'm I've just heard three points of

so the personally I'm just trying to stay as neutral as I can just I'm only supposed to deal with the facts the owner should say you know that shouldn't just say pick when he has three points of views one person says you can do it one person says you can't can't do it and the third person says I'll do whatever you want mhm the owner the owner has to make a decision based on you know not what's the most convenient or the what works for them the most I mean this one this is tough

ultimate responsibility for the permit yeah to question you know just just on based on that [Music] conversation I don't disagree with a lot of what you said but I think as much as yes if you're the owner of the property obviously you need to make sure you do your due diligence when you're doing these things I also think when you're a town official I don't care if you the road commissioner or the code or the code enforcement off town clerk if you're telling somebody that they can cannot do something that isn't in your purview necessarily or even if it is in your perview don't you have a responsibility to follow up on it don't you have a responsibility to go back to the code enforcement officer if you're the r commissioner and say hey I just went down this isn't this isn't going to work you know I would think the only if the owner just heard a different point of view if he got he got one person to

say yes he's got it documented saying you are good to go it seems to me I'd be going with what my document says they did go with what the doc say they did go by the document that I think I I think the Calvin conversation and I'm not saying what didn't happen but I think it's irrelevant the document says 90 ft it does what they submitted was 90 ft but it also shows um it's hold on

hold on it shows a side setback of what does it show on the document well on the on the application showing 50 ft setback and on the plan no it showing showing um I think it's two different places I think it says on the application I think it says 50 and 90 right I saw somewhere on one of the say 90 on the front and 50 left and back 50 left and back okay yeah

so the back was wrong yeah it is it possible that was wrong and I I would have thought the guy who signed it should have some responsibility there mhm so again I think I think Calvin's conversations are relevant because the drawing was correct or or is what they did what was wrong was the back you know

the back Dimension okay but how can you say the drawing is what they did if the back Dimension is well so it's it's what they did in it's the it's what they did in one regard but not in the other and compliance with what Calvin said which again I think is irrelevant they did that that meant that what Calvin said uh whether he said it or not it's irrelevant to me the drawing said 90 feet from the C which is what they supposedly had to have so they they you know they had to have that and they couldn't meet the S requir we don't know if that's what they were told they had to have again aside from Calvin it's what they submitted but it's we know it's what they submitted yeah okay so if if they submitted that with the dimension of the garage they couldn't have met the set

responsibility there to pick that solely at least solely the applicance eror applicant applicants eror let's get down to some more specifics here where are you on number is a result of the applicant's action okay all right so and it's almost kind of like a balance here you know like I'm seeing so not solely so you think it's

more of the town's responsibility than the applicants yeah uhhuh okay y fair enough and um so let let me just repeat what you just said my words disregarding any input from Calin we're just going with what's the documentation says the documentation says that the garage needs to be set have a 90

foot setb from the front and does this garage have a 90 foot set back from the front I think it does or from the center line from the front to the center line know it pushed it up against the side s side line yeah so they got the um Alan who would have made these measurements for the setback with the person who applied for the permit yes and that was the builder whoever could be the owner Builder the owner of the build who is Leroy smart from Smart Builders okay some smart Improvement

okay oh yes I'm sorry so the point you're making Neil is that when he submitted this permit application it was stated that the setback was 990 ft from the front which was correct it was also stated was 50 feet from the back which was

that's why we're here today because it's not in compliance with the the setback in the back the plan didn't work the plan that was submitted doesn't work on that lot that's bottom line right correct you can't do it yeah and looking at this piece here and I don't know what this is what this that's the back page of the building application okay uh it says right here

it says all drawings must be two scale or have detailed Dimensions okay I mean it's in black and white I mean yeah and up here is a signature signature of owner or applicant Leroy smart on 73019 now I got to be real honest with you what what uh I see

here uh for this isn't even close yeah yeah well it has it has some detailed dimensions on there say what it has some detailed dimensions on there but the shape you know we're not dealing with the square we're dealing with a triangle for one thing not to argue with you but it says uh this scale or have detailed Dimension

well we already know that it's 6 ft instead of 50 we know the dimensions are wrong the details right the dimensions are wrong so yeah this is why I'm saying that somebody applied for it with the bad figures and they knew they were there well we know yeah that we know they applied for it and we know they you know they signed it we know they signed it so yeah but is that is that is that

the owner's fault well I asked the question who's in charge of that permit and I was informed that uh it is ultimately the owner's responsibility and the talent yeah how would they know and the talent well they isn't it their job to submit accurate information the owner's job to submit accurate information in the building permit but if this was submitted to the town and the town issued the permit then the town accepted it as being adequate

because what I struggle with is how is at that point when a permit application is submitted how's the code officer supposed to know whether or not it's accurate at that point when it's submitted right they can't they don't know you basically have to take the word of people giving it you have to take the word of the people who's given it to you supposed to be accurate information when you take the word at that moment yeah right but then you verify later that's you verify later yeah at what point now now I verify you you verify to the best of your ability right because you can't you're not a surveyor correct right and you even if you know you verify you're taking the word of the applicant with regard to where the line is

clarification okay why don't you come back up record again my name is Benjamin roach one of Benin roach y y'all are arguing over whether or not the 50 Foot is correct um I believe the violation point is the corner of this garage and this line goes at an angle across here so those 50 ft measurements could be correct from the back of the garage to the property line and from the side of the garage to the property line yeah but that's true but a builder it's their responsibility when they put that dimension on there to put the dimension from the point of the building that's closest to the property line for regardless that's just standard convention for Builders yes I just wanted a clarification on the y 50 foot measurements yeah yeah yeah yeah that's an interesting point though yeah just to say those 50 foot measurements might not be wrong that are in the drawing I don't know yeah I don't know

if that's interesting y thank [Music] you okay um so other comments with regarding to with regard to number four so I have a question yeah so is part of the building in compliance and part of it's not is that what you're saying yes just the back corner corner very back

building's out of compliance right it is out of yeah okay that's not what he he the for before we move on just and and sorry but I think at this point i' I'd like to keep it or I'd like to ask these board members who are faced with this decision um whether they have additional comments regarding number

to the um the Dilemma for me is the owner the actual owner did not cause this it's not it was not their action so I don't hold the owner at fault but the Builder was the agent for the owner so where I'm stuck on is and you know again I can I can I can

put myself in this position and and just be ripping my hair out but we're we're supposed to not have any feelings we're supposed to just we're supposed to be the most insensitive board in this town well yeah I think your up a good point and you know I I kind of look at the history of this board and I think it's important that we're not insensitive you know and we try to be wherever possible to be uh you know to be uh how should I say good neighbors too and I agree with that and compassionate but but at the same time we have to operate within what we believe is the legal framework right yeah and we've always counted on you know a lawyer on the committee to to help in certain things I would I would want a ly's point of view which I'm missing our chair because it's that question of is the agent you know the agent is acting on behalf of the owner if the so if the agent ER isn't if the error is on part of the agent does

it mean the the error is on the owner that's where I'm maybe again I'm not an attorney but I know my own personal view of that would be that you know if it's your agent then they're acting on your told them they can you know whether whether it's a contract or whether it's a shake of hand but you have they have agreed to apply for the building permit on your behalf another scenario so let's

was acting on my attorney's advice uhhuh and that advice proved to be wrong proved to be fault faulty advice am I at fault or is my attorney well there's another agent there's no other piece that puzzle is the town that accepted the application so you're missing a piece I understand but he's only talking about this other piece you know but again this isn't a court of law you know it's not like you know they're they're here because they committed a crime they're here for of course they haven't and um they're here because uh they're asking for a variance so I'm you know I'm not sure sure I think it's might be a little apple personally I think it might be a little apples and oranges um but I I understand it it is a little you know there are some there's def certainly some challenges here but I I go back to you know was this person the applicant's agent and I personally I

believe they were the applicant's agent because they built the garage and they came for the permit and they signed it um and I guess I would ask the applicant did the contractor have permission to come from you to come was that the expectation that the contractor would apply for the permit or I would ask the the attorney are we Gathering more information right now because that's so oh that's fine yeah we don't have to I draw my question yeah yeah okay

um yeah okay so I think at this point you know we've kind of hash this out so I think we kind of and we've gotten a sense of uh where we all stand I think for these different criteria Point points um is there further discussion

that we we want to have before we entertain about voting and What needs to happens absolutely vot yeah so voting section 17.5 decisions on any matter before the board shall require the affirmative vote of a majority of the membership at the meeting or hearing but not less than three affirmative

committee of four so um I have a question yeah maybe an answer can you um have this gentleman who's an alternate be a part of the vote no or not we cannot not at all yeah we cannot and you know I think we already stretched that a bit by um having the alternate participate in the discussion but I think it's very valuable because the whole idea of having the alternate here is that they you know get some training and they they become good appeals sport members and that's why we we let the alternates ask questions okay so um all right that said

uh you know the options here are let's just put the options on the table um the options are to deny um or uh or to approve and I believe and you know I'd have to look at the ordinance again to recall exactly but we probably even have the ability to deny or approve with conditions or to approve with conditions and um the other piece of that the other piece here is when we write the decision we have to have specific findings so I think it's important that if someone is ready to make a motion that um I would also like to hear and I think we've developed some of those findings uh in the discussion on the hardship points but um I think you know

if uh a motion needs to include some specifics with regard to um reasoning Mr chair will we have a chance just to make any sort of summary argument before you absolutely I think that's a really good point Thank you Mr Mr mooy come on up attorney mooy yes

Terry if I understand this all the years I've been here one through four have to have all positive vot or negative vot or voted up or down as as a unit yes thank you so it's basically I my understanding of how it works is if you agree that it meets all four then that's an that's a thumbs up for approval um ex exactly so if you feel that it only meets three then that would be a denial exactly that's simple but that's why I think a vote is required on all of these uhuh to get to I think that you fin vote I think

that you would could include your reasoning with regard to why it meets each four each of the four y or we could do a vote on each I I'm fine either way but let's get give a chance to attorney Malloy to make his closing statements and then then we'll move on thank you Mr chair and thanks all for wrestling with these issues they are never easy and that's part of why we have variances as a tool um you know these are here to sort of be the conscience of the town on an issue by granting this variance you are not opening the floodgates to every other application that would be a a wholesale rezoning and that is not allowed under your ordinances and it's not allowed under state law but what your ordinances and the state law both provide is an Avenue for where mistakes happen that were not anyone's fault to bring some mercy to the situation so that people are not out in the cold and I wanted to just say here you know that

goes to the issue of the setbacks issue um you know it's not the issue is not whether or not granting a variance is going to alter the setback that's somewhat respectfully beside the point the issue here is looking right at each of these factors in listening to you speak tonight and I applaud you for going through them um in the analytical manner you did what I heard was that part A here in terms of um the violations uh being limited to the setback issue was met and then when we got to the hardship issue it appeared that there was unanimity on at least the first two of the hardship issues there I'm not sure where we ended up on three in terms of the essential character of the locality but that's where again I go to the essential character is um one of

um the essence the qualities this is not somebody putting a slaughterous in a residential neighborhood or a highrise or something that is going to change the nature of the town of Durham it is still a residential Community it is still a residential neighborhood it just has a garage that one corner of it is within six feet of a property line and we acknowledge that okay but that's what we're here to say is by doing that is that does that so change the nature of this neighborhood of this community that it's unacceptable to this board in this one particular circumstance finally we turn to that issue of the action taken by the applicant or the prior owner and um I appreciate the struggle to deal with this concept of agency but when I look at the text of this ordinance I don't see the word agent anywhere in there and I think you're reading into this and in trying to grasp with this perhaps out of

um some anxiety that this would be opening the floodgates um and you know if the Builder goofed then then um shame on him but not Shame On Eileen and Terry who trusted people and then had a town official come and tell them something contrary to what the ordinance said um the other point here is I think we've been wrestling with some historical shortcomings in how the town has done its paperwork and again um you know I realize uh Mr Plumber here tonight isn't is not the one responsible for that and sounds like he's being very diligent in his duties and we're very appreciative for for that and his efforts but again is is is the right solution in this request to make Terry and E responsible

for whatever shortcomings the town had in following up on its paperwork in closing permits and following this up this was not them uh erecting you know a highrise or putting in a slaughterhouse or taking something in open Defiance upon the town's requests they did exactly what the town told them to do and um and so I would ask that you really take that into account um for a couple who are living on social security for a young couple who want to move to this community um there's a lot of people who are going to suffer financially uh should you vote against this request um I just want to make one other reminder that our alternative Theory here on the Equitable aole argument and that's in our written materials um but again that's regardless of the factors for the the variance it is fundamentally unfair to um to hang the applicants here for

doing what the town told them to do and regardless of if you're not issuing a variance we would ask alternatively that you also issue an order finding that the town is not going to take enforcement action against this garage because we believe if the town were to be filing a land use enforcement action that under that degross AA case that's in front of you that a court would side with um with with with the property owner owners here because of that action and it's really on all fours with that case uh and again I don't want to I don't want to go into that unless you have that's beyond the beyond the capacity of this board to for example to issue an enforcement action or to issue a letter of no action well would like to unforunately we're not I'm not asking for a letter of no action but um we did want to put in there a um a request that you know that the town is not contemplating taking any enforcement

action here and we don't believe that it could on the basis of that case so would want to preserve our rights should we you know have to appeal Beyond this we want to be on record of that um but again I also think that also goes to the equities about what action did they take or or not take you know the the just one final point about action by the applicant it does it says action by the applicant or prior owner it also doesn't charge them with inaction to fix the town's paperwork it doesn't say they're responsible for making sure all permits are closed out and and site visits are done and inspections are done it says did you do something you know that that caused this where it's your fault not the towns or not an innocent mistake and we think that's what's happened here again these are very difficult facts uh I I appreciate your wrestling with this um I would just remind you that this is a case-by casee determination in this

case we think the equity's favor granting the variance thank you thank you I make a motion yes please make a motion Mr chairman I move we approve the request for a setback variance by Eileen and Terry lefave okay please go slow okay I've got this written down okay uh

I move we approve the request for a setback variance by Eileen and Terry lafra LEF because we find they meet the requ the requirements in section 173 B1 A and B Parts 1 two 3 and four of Durham's land land Ed discussion okay um okay and uh just okay so we have a second we have a a motion from um

Neil and we have a second from Milt discussion comment so I'd like to hear what the you all um think of the option that Mr Malloy put on the table regarding the Equitable stole the what he spoke about am I pronouncing it correct an equitable is stoppable means we don't have to Grant the V Arians but but there's an alternative way out of this in which the town says we you know we won't go out we

won't I think it makes total sense we can't do that we but we can't do it we can't do it oh yeah we as a board can't do that that's right can the SL board well it's already been to the slack board or no it hasn't the SL board Wen off this optionor I spoke too soon so I guess it was suggested to take it to the select board but the select board uh didn't rule on the the issue they didn't did they rule on this or did they rule on something else they didn't let that come to the select board they didn't want to see it they saw it on this they didn't so it didn't come to a meeting correct it wasn't proposed it was on the agenda but it was removed is is that correct right so it's a decision that they make we

recommendation Yeah question yeah we could make a recomend recommendation I guess I think that's before we vote on his motion don't we need to uh find out where we stand on B one two three and four uh where we stand with regard to well we have to have findings you know we have to present findings so in one respect you're you're right um and um you know we could go

through them each one of them and then have a bottom line vote I I think that's the only way to do it because part of the problem with finding getting a finding is that we don't have a lot of agreement we don't you know we don't have a lot of agreement so you know what I'd like to do I think it's reasonable actually to have a vote and then to discuss the findings I don't know whether the vote's going to carry or not so U well the vote itself would

would say we find we have a finding right well what are those findings that we agreed yeah have to go a little further than that you have say why we AG are you are you are you saying say we agree on all four of them yes well that's good yeah yeah I mean that's fair enough yeah yeah yeah so we're not denying I'm say I'm saying requ that that Ain right I don't believe well but the only thing about that is I think that if you were if you are going to provide if we're going to vote on that motion we should probably have some statement of why um to make that motion stronger why you feel it meets number four I I would agree with that previous vote to this board we we would have taken this one by one and then done a vote for the whole thing we we wouldn't have ski that step yeah I think in this case you at least have to address number four because number four or uh you know

three and four right sounds like three and four so I guess we would you know ask for um that Amendment to the motion and again that's because uh you know we're charged not only with voting yes or no but we're charged with delivering findings and writing a decision what does it say that says wri in the ordinance and and and I'm the one who has to write it wouldn't and I I'm not going to be guessing Okay we're going to agree on what those findings are or we're going to have them in the motion should I withdraw the motion uh yes I my yeah yeah okay very it I as I said the

way something like this has been handled previously is we would discuss each of the four took care of the motion well that's the variance it's not that simple you know I would suggest that we still even if one fails that you still have a bottom line vote at the end because

motion and a vote on each of of the article of each of the items IND individually yeah correct and it's my understanding they all have to have an affirmative V in majority or a non-affirmative vote in majority and all four have to either pass or fail each or individually and that will determine if the variance is allowed or not allowed I

think that's a reason approach there that that's way I've I've always understood that for years very good uh so just point of order so I'm not just to clarify we have four voting members so if the vote was two to two it did if it didn't have it fail it would fail okay yeah okay very good I think that's a reasonable

motion for each of Item B one two three and four or start we're gonna start with one a I think we need to start with uh one a hold on just one second here you're gonna have to bear with me there okay so um Neil if it's okay can we have Neil make the motions and just to expedite things here Neil could you give us a motion and then we'll take a second so Neil could you uh give us a motion on

it's one B yeah I'm one a a one a yeah one a that's on page 158 dimensional variance so what are we doing we we're voting to approve that we agree sure yeah I mean you it sounds like that's the direction you're going you're certainly welcome to do that to make a motion to approve um you know to approve

a you know you would say uh I move that we approve that the proposed structure or use would meet the performance standards of this ordinance except for the specific provision that has created the non-conformity for which relief is sought that would be the motion make that motion okay and you could also add

to that because we have asked the code enforcement officer whether there are any other nonconformities and he said no and specifically what is the provision that it meets the per otherwise meets the performance standards that this property otherwise meets the performance standards right except for the specific provision y what's the provision except for that yeah the setback issue this case the set right okay so basically what this is saying that otherwise the the property meets the ordinance okay but it doesn't otherwise except for

the setback issue okay it meets the ordinance and the code enforcement officer has said yes that other than the setback issue it meets the ordinance motion and you don't actually you know if if you keep the motion pretty close to the text and just add your reasoning at the end that's perfect for me so Neil you made that motion yeah I move we we approve that the property meets the requirements of onea based on what code enforcement officer has told us okay meets requirements one a based on what code off based on the fact that the code officer said it it otherwise meets requirements should Z back be in there somewhere no no not yet that's the exception that's what they're talking about in here exception that's the reason why it's that's the

and again that motion is that the um property meets the requirements of 1 a based on what the code enforcement officer told us is that correct yes okay now second that motion told us okay and that's Neil and Milt all right discussion all those in

Z opposed of course we're unanimous that's good all right number okay one a and 2 B with uh B1 would be the first one correct yeah yes under the hard I move it under the hardship undo hardship requirements of B1 uh we approve B1 uh

that for example uh just a suggestion as for example it's been demonstrated to us that they cannot sell the property that seems reasonable why why do you believe this is a hardship uh because on Social Security security and anyone in Social Security these days can't sell the property for full value is not getting a fair

simple how about we just say they can't get a fair return that's what leave their stat economic status out of it that's what the whole thing said okay all can't sell for reason aable make that second all right so we have Neil and we have Milt and again the motion is um under undo hardship requirement B1 that

we approve B1 because the applicant can't sell the property for a reasonable return second correct yes thank you two oh two well B2 oh yes thank you two B2 B2 all right Neil or whoever would like to make a [Music] okay I make a motion

see the first paragraph but the the need the need for variant is due to the unique circumstances of the property and not to the general condition of the neighborhood okay my motion okay so the need for variance is due to Unique can we say

the shape of the property shape or circumstances okay well not property it's circumstances because it's taking into account more than just the shape of the property not not the neighborhood neighborhood okay including okay

the house yeah that's good yeah or side door and how home entrances does that make sense yeah home entrance is good I like that including shape of property and not the general conditions of the neighborhood the home entrances okay so what I've got here is the need the motion is the need for variance is due to the unique circumstance of the property um not the neighborhood and not

comma this includes the shape of the property and the location of the home's Milt did I capture circumstances included also included the administrative oh the administrative uhhuh okay error okay okay can I just add that yeah and the administr and administrative errors [Music] andrate of Errors okay very good should

we be changing the wording of what's in the book well no you're basically you're not you're using basically the same wording but you're just adding the Y okay you're you're adding your your rationale for why you're proving this you're giving your reasoning and it's important to be able to give your reasoning for you know why you're approving or why you're denying at least that's what I've always been taught as a town planner and planning board meetings so you know if you want to have a decision that's going to hold weight and it's going to stand up it's important to do that I second

okay so um I've got a motion from Milt and a second from Neil and the motion is that the need um for variance is due to the unique circumstances of the property um not the neighborhood comma including shape of the property and the location of the home homes entrances and administrative errors

[Music] Z move on to classifi the land use classified rural rural residential rural residential character of the locality and it's that the granting of a variance will not alter the essential character of the locality and I think to Terry's point I think it is good if you know if we can keep the motion close to the wording that that's a good thing and but just add why needs water

there is a water theice that [Music] um let's see that I move to Grant the variance at that granting the variance will not alter the essential character of the locality as the structures you know will be the same structures and this is a rural residential um classification with some properties that are grandfathered and have reduced uh setbacks something like that that was just an

second um okay would someone else like to make that motion I you know as chair I'm not I'm just I like to provide examples I like to make motions okay well very good I'll make the motion then okay so Paul and then Terry okay um give me a minute

um ter [Music] motion granting of the variance will not alter um the of the locality which is residential as the property is zoned rle residential and includes other uh properties that are grandfathered with reduced setbacks discussion just a a question for Alan if I could two two I'm not sure if it's pertinent or not but it's just have my question answered so and on properties that are are grandfathered um when they get sold on the road that that's the grandfather carries for for infinum the existing structures are grandfather additional structures that they would put on have to meet the current coordinance Y and a variance has work the same way once a variance is granted if let's say the new homeowners at some point are going to maybe move on and sell the house will will that variance be in effect then for the actually if a variance is granted it's the responsibility of the person receiving the variance to register that

with the registry of deeds and it has to be done within 90 days and that cements that variance for that property just important within 90 days it's n and void there is no VAR okay all right very good so a further discussion regarding

favor of exstension sounds like yeah okay you abending or voting no abstaining okay I'll make note of that okay so moving on now to hardship is not the result of the action taken by the applicant or PRI or a prior owner they hired to submit the application properly and they trusted that the town would review the application properly and the town approve the

you saying because they trusted the contractor maybe there's better language trust [Music] that I think we need to put the motion as it written in the book y I agree okay just skip the explanation look can you make it make it the hardship is I'll make the motion yeah the hard is not the result of action taken by the applicant or a prior owner the result of action taken by the applicant by the

applicant or a prior owner or a prior owner thank you Terry I second and hold on why and I think you know you've really got to say it on this one because the reason you have to say it is because you know these are the owners the the owner is the

again the owner is the applicant yeah right so why isn't it um the result of action taken by the applicant you got it because that's what it says right yeah in the okay but why is it not the result of action taken by the applicant so is it because you're just saying period that's it or are you able to say is not the result of action taken by the applicant or a prior owner

ordinance book okay now we know who the applicant is we already know that yeah but I don't believe that that's part of the motion okay um all right very good is there a second I okay and um more of your point of view so you feel

that it was a the I I think I mean I'm anticipating how you might vote based on what you've been saying so I want I'm just ask I'd like to just your I want I'd like to know what you're thinking my thinking is that uh the

this uh the applicant was Smart Homes Improvement to me he's a subcontractor of Terry and Al alen free so he is working for these people these people are the owner and the original applicant for the permit these people just went and got it and I I still feel that the

applicant is the what the applicant for the variance permit or for the permit okay for the permit okay yeah so you believe the applicant okay got it got it got it so the applicant for the permit is the owner because um smart Builders or whatever their name is was working for them okay gotcha okay and and the

applicant here is the owners uhhuh so that that that's what I see now granted Smart Home Improvement got the permit right but they got the permit for the owners of the property right right I mean they probably included that in the price or whatever they did to build a grag but uhhuh fair

enough okay so and I'm sure that the owners was aware that the uh permit was going to be issued to them people but they knew that they were going to go get it MH I mean I've had construction at my house and the first thing I asked people don't you got a permit oh yeah we wouldn't got the per done deal mhm you know so I mean you have to keep up with things so that's my feeling on it okay yes so Terry what role do you feel the town plays if any in this the town took the

word of the contractor that all of these things were within reason and met the mhm okay I mean and and and uh the the the Builder wanted the job he got the permit so he got the job of course we don't know what anything about the order like how that happened right we can't speculate right but we know that he got the job and we know he got the permit right okay so that that that's how I feel about about that okay so again your motion was motion that it's not the result of action taken by the applicant or a prior owner or do you want your motion to be that it is the hardship is not it is the it is is the result is a

result yeah so you know that's what we're trying to figure out here is because what you your motion was the opposite your motion said wait a minute wait yeah if if the hardship is not the result of action taken by the applicant or a prior owner then the vote would be

no mhm not a postive vote okay I see yeah okay okay yeah okay yeah I don't see say it again because because if it's a positive vote you would be saying it was not the result of the okay it's semantics um uh making it a motion making it into a formal Motion versus just reading that section of ordinance right yeah so you know he's entering he's entering um section two4 for for a vote so he's entering it as written and making the point that yeah if you vote in favor of it then you're in favor of it as written if you vote against it yeah then you're voting contrary to the way yeah maybe you could just amend your motion to um just you know we I just want to make sure this is clear well you vot in the positive you're saying it's not the owner's responsibility yeah I I really think that you should change I would really recommend that you I'm sorry I know it's kind of semantics but it would help us

keep things clear if you could just say a motion that the hardship is the is not well I'm sorry the hardship is the result of action taken by the applicant you can't do that okay you just want to vote on up or down on it has to be up or down because if I change it and everybody votes yes okay okay then you have the part to vote on all four if you vote no on this because you're saying it is a responsibility of the app

fail okay yeah I think it has to be entered in the record the way it's written okay very good and then voted up or down I mean we can't be changing a word of these ordinances I don't believe okay so um your motion is the hardship is not the result

of action taken by the the applicant or prior owner yes okay got it and we have a second on that already from Neil right all right very good further discussion I would really like to hear both of you your point of views I I think the town is responsible here I don't think I don't think the applicant is [Music]

and and the town is responsible based on the actions of whom the Cod the the manide the the permit the code enforcement permit by what he was told go look what go look that's what they do now right there's nothing preventing him from going to he he the mistake he may have made was so he you know he just took

that he didn't go I know if it's a mistake but I think it's beneficial to go back to what Allan said with regard to for example you know when the application materials were provided initially you kind of take it on faith right because when you first register the application you know you haven't checked yet nobody's checked yet I mean when the contract steps through the door I don't believe the first thing you say to him is I think you're dishonest and we're going to have to check you from top to bottom I don't think that's what you do is it Alan everyone coming through my door I think is dishonest absolutely that is Li to anyone they're lying to me that is in this case so Alan if I can ask you I mean so

is is a scenario that if the CEO doesn't check the app you know the information on the application he has to check it at some point right because he has to doesn't he at some point in the project the CEO has to has to approve or write it off for given okay doesn't he have to in do an inspection yes so is it typical that the CEO would wait until after a structure is built to then inspect it and say no this isn't right or would they do it beforeand so that a struction would they already be put up I can tell you what I would do I can't tell you what they would do then because I'm not that I'm going to take an application and look at it and look at their I'm going to bring the lot up on the G GPS and look at their lot say oh that looks really close to your property line or that looks fine I'll check it when you put your Stakes out or maybe on the tax map if not on the GPS the GPS does the G I know

but I'm just saying you know you have some enforcement officers who are GIS capable and some that AR yeah I'm going to get an idea about that location if it if I look at it and go oh yeah I'm going to have to look at that I'm going to have to come out and look at that I would say that I'm going to I need you to stake that out I'm going to come and look at the stakes and we're going to measure where we think the property line is and go about like that if it's in the middle of a field I'm going to go oh yeah that looks good and I'm going to check it still now would I check it back then if it's in the middle of the field nope no now is a different store Bas

based on your experience the CEO at some point some point early in the building process probably before the structure go goes up we probably come and do some type of an inspection for concrete for framing yes okay in this we don't have any record that that was done no I still have the question of you know I know I work in the trades and um the inspector just doesn't stop by you know unless they're they're concerned about something specifically they wait for you to call and I know if it's a a busy time

they can lose track they can think oh well they probably just haven't started construction yet or maybe they haven't driven down your road you know they have to the the Builder has to call and say Allan I'm ready for an inspection otherwise you've got no idea what's going on you know unless you know you happen to check up on it but it's really up to the Builder to to tell you which doesn't happen often I don't have free time even if I'm driving by a place and I think oh they got a building they got a garage perit at months ago yeah I don't have time to go look at that yeah I got things to do exactly you're saying so if if you were the Builder yeah and there was any concern on your part you'd probably ask the CEO to come come and do an inspection or come look at it but if you either didn't care yeah or had no you know thought you per ly good you wouldn't bother to have them come inspected yeah I think you know you this

is a this is a spectrum okay you got guys who play by the rules and who will they know and they've been doing this for a long time and they and Builders you know this isn't just Durham's convention you know usually there's an inspection when the slab goes in right usually there's an inspection for framing and then usually there's a final inspection if there's any electrical there's an electrical or mechanical inspection so you know they're different pieces and those are those aren't just Durham rules they're they're generally accepted practices you record of any of those inspections based on based on your knowledge there were no inspections because there was no paperwork or any documents emitted there are more than there's more than a few instances when I don't have documentation and that's that's true on this question yes SPID my question Alan

um when you're when you were hired by this town is there are you given job guidelines or the job description State Statute State Statute obviously comes into play but I mean there obviously got to be some expectations from the town manager of what you're what Duties are correct yes and you're certified in certain things and your predecessor or the gentleman who was doing whoever was doing the job before would have had to had that training right okay so there is an expectation that they're going to do what they're supposed to do yes and I'm also assuming that if you get an application or you get 100 applications this year of them get followed up on on a hunch or maybe you hear something or maybe you just wonder why why why do I have all these applications and I haven't had any call to go inspect these things they don't all just sit there in a pile do they well not everyone knows the importance of a final inspection and

sometimes they don't call for that that's very unfort does our application process discuss that yes okay so I mean they're presented with that information yes and they sign and they sign the application right so they know that they're supposed to be inspected however lots of times they don't sure and and I honestly don't

follow up on every single one those those applications have to be processed do you know what happens after the permits expired it goes into the property file unsigned right but that's but that's proof in the buding that it is that it didn't get completed yes and it may have S said it

it may not have completed because they didn't call correct right that's POS they didn't call or um or who knows or maybe they didn't finish maybe they didn't maybe they didn't finish right right okay thank others terms to number four

just away with my thoughts that you know all of these things are important to the circumstance I think there's a lot we can learn from this case I think the process starts with a fundamental thing which is the site plan and the site plan is kind of key to everything in the building and planning process um and in this case the site plan was Not only

was it inaccurate it didn't reflect the site conditions and um I think the town could have done a better job but I think ultimately the applicant if the um um if the applicant is um for example getting messages from another town official that they should really do something different than on the site plan that they need to come back to the code enforcement officer and say I need to amend my site plan or this person has told me this because ultimately the code enforcement officer and the permit is what guides the approval process here and they're the ones they're the municipal official with jurisdiction and yes you know uh the the

uh the Public Works director can say you know we want the entrance right here and um you know we want the building back from the road but those are as the applicant stated for example that the driveway way should be as close to the mailbox as possible those are more in the realm of as possibles and they need to be brought back and it's a reasonable expectation that it then goes back to the code enforcement officer um so you know I feel that in this case it the uh Not only was the site plan inaccurate and not possible to follow but that um the applicant didn't come back to revise it when they realized and when I say applicant I'm referring to um the owner and the building permit applicant but they didn't come back to revise the site plan so that's why I I uh while I would like

to see this be taken care of and wave my magic wand and have this be done with I I I don't think I can vote for number yes I I don't understand your logic the the site plan was submitted with the request suggested by Calvin if he didn't suggest them before the conversation I there was no there was no need for them to go back well yes of course there was because the building was moved to within 20 feet of if you look at the side setback in the site plan it says they had no knowledge in it says you're suggesting they had knowledge they needed to go back or should have had knowledge if if um if the if the Public

Works director was suggesting something that wasn't on their site plan how would they know they had the site plan they submitted it they didn't submit it the Builder submitted it right the Builder is the owner's Paul Paul why couldn't they have just just why could I mean whether it was the

Public Works director or or anybody um they could have listened to him or they could have said you know not listen to him so if they had threatened because if they had in their mind if they you chosen well you know we're all set to go we could we got our permits and everything and the Public Works director is saying I'm going to tear it down if you put it where you want to is is you know see both you both have

good points and so I'm trying to figure out I'm still in the middle of that seesaw yeah um so it's kind of a cup half full or half empty type of thing yeah I mean so it was it's a mistake by the town if if in effect he threatened yeah I'm we're we'll tear it down that you know then they're going to believe then they might believe him okay well I think there's another Point here and that is that you know it's up to the applicant to provide a burden of proof and um we do have a statement here from from uh these folks

from the applicant but does that provide a burden of proof I don't believe that it does was the was there a request for the um public work directed to town approved the sketch the drawing the drawing was wrong they approved it yeah but I nobody double check but it wasn't put where it was says it was going to be put on the permit wait a minute they didn't approve it they accepted they accepted it thank you they accepted it they didn't approve that yeah and the applicant signed um something basically saying that to their knowledge this is all factual and true right yeah can we call a

it's a motion I'm Bo it down because I'm not done okay okay so it does say that on the applications yeah that it's uh can you read that or just read of SE signed by the owner or applicant I certify that the information contained in this application and any related submissions to be true and accurate to the best of my knowledge I understand that I'm responsible for the compliance with all for the compliance with all the applicable Town state and federal regulations and the failure to comply may result in the imposition of fines legal fees and the abatement of any violations to include abandonment of use and occupany and BL thank you so a qu question was the based

on this building permit was the garage located where it was permitted no and that's because the side setback on the building permit is uh 20 ft so and it's not it is four it is six feet from the sideline well I I would say it was it was located where it was was shown to be except that the back the back line was wrong it's 90 ft from the road you know next to the house I think it's kind of a black and white in my opinion either it's located in the the right position or it's not there's no halfway is the way I would look at it either it's violating one step back and it's not in the right location or it is that's that's what I need to know that whether it's you or or or or Allan is the garage located where it's

stated in the permit it's supposed to be located it it can be if it's six feet from the but that that's not part of the permit that that came afterward the the permit shows a schematic and a permit shows verbage my question is is is this garage located where it was permitted to

in this drawing so you you can't I can look at this this number and say yes 90 ft from the central line yes it probably is met that one 50 ft from the S side line it might be and have to look at that 50 ft from the back line I thought the sideline was violation it's well and whether it's a side or a bag semantics so you know initially it sounds like it's a Town's

mistake but that's why this question I'm asking I think is so important was is the garage Place located where it was permitted well the one thing that we knew for sure is where the road is nobody knew where the back line was yep so it's located exactly where the road says it from the from the road set back but it is up to I think any judge

in the case for example a forestry cut you know you're cutting your property of trees okay and if you cut over the line and you cut a half dozen of your neighbor's trees the neighbor gets upset and says um I'm going to take you to court and they take you to court and the judge says you know assesses double stump damages um I think the Judge would say you know it's up to you to know where your property line is you have to know where your property line is ultimately I think the property owner is responsible for knowing where the property line is the application says to the best of their knowledge they they said to the best of my knowledge that's what I understand today how do you um respond to Paul's

scenario that he just gave about a judge about because that's that's a real life situation if a guy cuts trees on I mean it's just we don't have to go down that gra well it kind of does it's put relevance to this I'm trying to I want to make sure I understand both of your your way way you're both thinking because it that is the the brunt of this is it up responsibility of the owner to know his property line yeah I think it is I I I I I got to be honest with you

Mil I got to think that 99% of the people that live in this town can probably tell you exactly where their property line is bet they can't within a few feet well I I'm not I'm not I don't know about that but how many of them would be right H good point lot my neighbor can tell you where the property line is she's never right yeah but I but I do think from a legal perspective that is their responsibility to know where their property line is or we're do well look I mean what about you know cutting your grass what about all these other functions you take up where you park your boat all those things you have to know where your property line is because you don't want to you know you don't want to be infringing on other people's rights I just think that's the way the law Works um and you know I find it

difficult because you know I I would love to nothing more than to approve this and you know help these people on their way but I I have a hard time getting over so so the people who could be infringed have said they don't care they don't feel like their rights have been infringed yeah that's right I think it's if Mercy has come to play here it's easy to interpret number four as not their fault because the town was involved in this decision the town could have helped remediate this problem if they had done their job more thoroughly maybe it was nobody's fault maybe it was just an accident yeah but nobody was injured in this whole thing nobody was injured the abutter doesn't care

today we don't know about the this butter doesn't care right there's going to be a change of own of ownership some point at some point when they do they'll if they just sold them a little piece of land and it's not easy to do it's not it take six months you have to get a survey there are steps there are steps um you know but I do think that you know this this butter letter does add more relevance to and I don't know if that was provided to the selectman initially when uh when these folks came or when uh

the seleman were approached you never went to the can I just clarify that point about the selectman because I believe it it wasn't as if there was a consideration and a ruling on anything and they declined it you know I believe I think I saw an email the town attorney suggested that because there's no enforcement action there's no consent agreement to be made right I think that's why it didn't get before them oh you okay okay a consent agreement under one theory is that it's a settlement of a lawsuit that's why that's different from changing zoning regulations you know so yeah the town has home rule authority to settle a lawsuit but that's interesting because I've seen it in in cases like this be used this be used in you know in another in other context but the town hasn't taken any issue with this and is not taking any enforcement action so here we are unfortunately right yeah so talk about that a little bit further

so it's right now you you said so right now it's not a problem with the butter right so what are possible scenarios if a variance is is given then that's the end of the story yeah even if the butter changes their mind later on well it's interesting because I guess you know you could look at it from the perspective of um you know if someone were to appeal the decision of the appeals board it would have to happen in a certain period of time right they have so long to go to Superior Court to appeal it and you know the odds of the property changing ownership in that time are pretty uh you know pretty small so after you get outside of that window then the chance of legal action is probably pretty low does that I I see you kind of nodding your head a little bit Yeah so and if there's a new owner once the variance is in place then it's a move Point well they know it so yeah right good a good point they

notice yeah yeah it's back to number four we have a motion here we've had discussion um are we ready for a vote on this Paul I'm I'd like some clarification as to what your vote is going to mean Absol I don't know exactly okay so we're we're voting on the criteria individually this will be the fifth vote this is on B4 and the motion

is wake up the hardship is not the result or is that the motion is that the hardship is not the result of action taken by the applicant or a prior owner so am I correct in understanding a yes vote means you're saying the hardship is not the result of action taken by the applicant or PRI owner exactly a yes vote means it is not the result of these people right exactly and the no vote is it is their fault What's happen right

exactly and before we take the vote so let's say it comes it's split yeah do we then is it done or do we still vote on on we still have a final vote on whether to issue the variant yeah you know what an explanation I'm the chair and I'm going to make you guys take a bottom line vote just for absolute Clarity and um just that there's absolutely no question I'm going to I'm going to call for a bottom line vote after this is done and if the bottom line vote doesn't match you know how how people have voted on the other four that could be problematic but we're going to do it anyway yeah okay so again uh we have a motion on the table and a yes vote means that the

hardship is not the result of action taken by the applicant or a prior owner um a no vote is that the hardship is the result of action taken by the applicant or prior your hand voting yes voting yes all those in favor of voting yes please raise your hand okay so we have

one yes and that is Neil all those opposed please raise your thank you I make a motion that we approve the variance can can he's going asked for a bottom line vote okay yeah with because I'm going to say that is you can you make a motion to deny let's just keep it simple I mean if you plan on voting I don't know how but you know you well because I want to I want the motion to state that there's there's there's I it's equal fault but there's fault on both sides to Merit the variance the the if I may yeah if I

understand the rules right is if any one of the four fail if any one of the four here fail you can't approve it we it cannot be approved that's right and so your bottom line vote that you were going to say yeah was was that that was just to it's just formality and Clarity but it really as I said also it needs to reflect how you voted on the other items and the fact that I mean look this uh unfortunately number four has number four has failed um and so uh you know it

doesn't look to me like this variance is going to like this variance is going to pass but we're going to do a this bottom line vot is explain that Paul what do you mean does look like it's going to pass okay because if you look at the ordinance it has to meet all four criteria and it has not and it has not exactly so it can't pass that's right it can't pass because your your bottom line would be inconsistent with your the individual lines that you voted on so now the the these folks can now go back to the select board with their attorney to request the letter of no yes the Equitable ass and I

think that's an interesting point because you know I did hear some language from the or reference from the attorney with regard to um that you know these are avenues that they want to keep open um and you know I don't know and of course that's not something we can vote on one way or the other but I think that

um you know it is something that we could uh make suggestion or recommendation yes so if I mean if this board is if our recommendations are considered by the select board then we I think as a board we should make the recommendation that the select board hear hear these folks out did they hear yeah because they have not done that yet yeah and I think their attorney should be present and I think his option is a is a as soon as possible marit yeah yeah yeah like it the next with regard to a letter of no action yeah yeah they got a meeting coming up and so it only delay by less than a week I think I think the next meeting is is next Tuesday there's no reason why you can't be on um the

agenda for next Tuesday depends on what's on the agenda now yeah I mean we can't speak for the town manager the select board but we can make that recommendation as soon as possible so you know you could make that for example as part of your motion or separately whatever you like make what you mean separ what do you mean by separately what however you like mil just I I'll leave it to you to make the motion so I make a motion that the appeals board recommend that the select board um um consider hold on stop before

you do that take your bottom line vote make your motion on whether to deny or approve the project or the variance you already done that we we said we can't go back and do that he wants a bottom line I want a bottom line vote so uh and I'll make the motion so it's just to be redundant yes it's just to be redundant I'll make so I would argue if we have a bottom line load that passes then question four gets passed

automatically okay yeah you can argue if you like I I won't uh no according to the if if if all four of those fail then this is there's no reason to do this vote I I agree I don't think there's a reason to do the vote okay okay then I will just make the statement that the uh the consensus or that the the vote of the board is that the the variance uh has been denied because three out of because not all four of the because not all four criter or not all the criteria have been met correct yeah very good now I make a motion that the that this board recommend to the select board that that these folks get immediate or have their I don't know how to put the wording but have their um Equitable a stole considered if that's if we're going to go with that verbage as soon as

stopple is the right verbage because oh yeah um we're almost done okay we'll take a brief pause my wife get off my recommendation is that the select board meet with uh put put it on their agenda at the at their next meeting all right well maybe we could get the correct verbiage here from the

um no action letter finding that this board would support a no action no enforcement action taken by the town on the basis of okay yeah exactly and um Mr how does that what will how does it will that affect the new homeowners at the next time this comes up I I can't speak to that right now so

but but this just as I mentioned to got the new homers to know that they need to go to the the the the registry of deeds they need to understand whether or not if they do get this no no action that they might have to deal with this at some later point they're going to have to talk to their Council in their title insurance company and what what that means and I think that's requiring a fair amount of speculation about what could happen after tonight yeah I think that's probably a discussion with this y they get what there think what you're suggesting the their sales can go move forward correct okay okay that we um mil you'd like to go ahead and finish your motion um that the the the board of

appeals recommends that the select action at their at their at their next consider I don't know which I don't think we want to talk I don't think appr is the answer yeah consider consider at that next meeting uh if you write approv that's the sure way to get it turned down so what you would need to do is you would need to call the town office tomorrow to get on the request to get on

the agenda okay hold on folks we have we have a motion on the floor yep so I just like to have some order per a minute Sor do we have a second okay so we have Milt and we have Terry okay and the motion is uh for the board of

Selectmen to consider a letter of no applicant at earliest convenience yeah is that right yeah at earliest convenience I'd say as soon as possible okay as soon as possible as possible I age that's better as soon as possible okay we've got a motion we've got a second we have

favor okay very good um Mr chair can I add a statement yes um because you've been denied of variance you do have have the right to um take this to Superior Court I'm sure so you have that opportunity um also um you could ask the select board it's in the ordinance but it's it's you're not being enforced there's nothing being enforced at this point but they can issue a consent agreement if you're in an enforcement situation which you aren't so that's and another remedy is is you can remove the violation in some way so I just want to make sure you understand that you have those options pie can I just ask Will Will written findings and conclusions be worth coming from the board as described in the ordinance yeah thank you

thank you applicants so we and uh thank you everyone else for coming this evening make a motion to adjourn okay second all right so to adjourn and what time do we have here 9:02 9 o' 9:02 9:02 and that's Milt and Terry discussion all those fav okay we here 4 Z we done

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