May 7, 2020 ~ Appeals Board Meeting

2020-05-07 · Board of Appeals · 1:25:24 · watch on YouTube →

Board of Appeals hearing held on Zoom on May 7, 2020, on Helen Lord's appeal against a notice of violation issued by code enforcement officer Bob Forest on a three-unit rental building. The matter reached the town after a 911 call about an alarming smoke detector; on inspection the code officer found inadequate smoke detectors, a carbon monoxide detector in only one of three units, second floor egress windows below the required size, and hollow-core doors where a one-hour fire separation between units is required. This was the board's first case under the ordinance enacted the previous December, and it began by reading out its own limited jurisdiction: it may only reverse if the code officer's action was clearly contrary to the ordinance or the record compels a different conclusion, and the burden lies on the appellant. Helen Lord, who has looked after the building for about 50 years, argued that it has been safe as it stands, objected to enlarging the windows and to closing the internal staircase, and said her electrician regarded most of the fire doors as a waste of money. The board repeatedly urged her to read the town's April 20 proposed consent agreement, which she said she had never received and which would have let her use battery-operated smoke detectors and a plug-in CO detector; when she said she would see her lawyer first, the offered one-week postponement was not moved and the board voted to deny the appeal and sustain the notice of violation, leaving her 30 days to appeal to superior court.

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

What was discussed

1. 0:03
   Paul leaves the board to the hearing

   With a quorum present, Paul withdrew from the discussion, saying he hoped the parties could reach an agreement, and was thanked along with staff and the appellant.

2. 0:03
   Participants identify themselves

   Because the chair could not tell the order of names on other screens, everyone on the call introduced themselves: Chief Moore, the town's fire rescue chief, who had brought the matter to the code enforcement officer's attention; Phyllis Brandon, a member of the public watching; Tammy Q, handling the town's audio and live stream; Bob Forest, the code enforcement officer; a neighbour of Helen Lord's, Sasha (?); and Helen Lord herself, who said she had no internet at home and could not see the meeting.

3. 0:03
   First case under the new ordinance

   The chair confirmed all members had the ordinance enacted in December and pointed them to the board's powers and duties at section 17.3(A)(1), page 169. She noted this was the board's first matter under the new ordinance, and that the provision is no different from the old one.

4. 5:06
   The board's jurisdiction read into the record

   At Gary Wood's suggestion the chair read the section aloud: the board hears appeals by an aggrieved party alleging error by the code enforcement officer, the burden of proof is on the appellant, and the board conducts no de novo review but acts purely in an appellate capacity limited to the record evidence before the officer. It may sustain, modify or reverse, but may reverse only on a finding that the action was clearly contrary to the ordinance or that the record evidence compels a different conclusion.

5. 5:06
   What the appellant has to show

   Gary Wood (?) explained to Helen Lord that she must show either that the town lacked authority for the order or that it made a mistake in interpreting or applying it, and that without such evidence and argument the board's only option is to sustain the code enforcement officer. She said she would be happy to talk when it was her turn.

6. 5:06
   Code enforcement officer's overview

   Bob Forest (?) said he got a call from the fire chief after the department attended a fire or smoke call at the property, and asked Helen Lord if he could look at the dwellings. Before going he searched for permits or conditional use permits for a multifamily dwelling and found none; she told him she had bought it that way.

7. 5:06
   What the inspection found

   Bob Forest found inadequate smoke detectors and a carbon monoxide detector in one unit out of three. The second floor egress windows did not meet requirements, with two people living up there and only one room counted as a bedroom, both rooms having very small windows. In the hallway leading to the second floor, the doors into the two first floor units were hollow-core wood where a one-hour fire rating between units is required.

8. 5:06
   Advice from the state fire marshal

   Bob Forest emailed the state fire marshal describing what he had found and asking what to do. He was told nothing is grandfathered in a multi-unit and given citations from NFPA 101. He then addressed only the most important issues and sent Helen Lord a violation letter.

9. 10:49
   Questions on the detectors and windows

   Gary Wood established that the single carbon monoxide detector was a plug-in unit on the kitchen counter, and that both second floor rooms have small windows. Bob Forest gave the egress window standard as 5.7 square feet of clear opening, with the opening no less than 24 inches wide and no less than 20 inches high.

10. 10:49
    Contact with the fire marshal and the fire chief

    Asked whether he had dealt with the state fire marshal's office directly rather than the Durham fire chief, Bob Forest (?) said he had been in contact with both.

11. 10:49
    Why nothing is grandfathered

    Bob Forest (?) read the transfer of dwelling provision: a person who after October 31, 2009 acquires by sale or exchange a single family dwelling or multi-apartment building must install smoke detectors within 30 days of acquisition or occupancy, with an identical paragraph for CO detectors. The board identified these as state law, title 25, with section 2464 cited in the material received.

12. 16:08
    Fire separation and fire doors explained

    Bob Forest cited NFPA 101 section 31.3.6.1, under which exit access corridor walls must be fire barriers with a minimum half-hour fire resistance rating, and said fire doors are 20 minute doors. Under the IRC the corridor side needs a half hour and the apartment interior needs a half hour, which together make the one-hour rating between units. His notice offered the alternative of installing two fire doors or removing them and installing the required one-hour fire protection between units.

13. 16:08
    The fire chief prefers closing the stairwell

    Chief Moore (?) said he and Bob Forest had discussed it that day and that his recommendation is to close the opening rather than fit rated doors, because the doorway on the second floor leads down an interior stairway to a first floor door that is effectively obstructed by a refrigerator. He described that as a recipe for someone getting trapped, and said a person disoriented by smoke or darkness could go through a rated door into a dead end.

14. 21:28
    A separate exterior stairway serves the second floor

    The board established that the second floor apartment is reached by a separate stairway leading outside, and that the interior stairway and the two doors off its hallway, one into the back apartment and one into the front, are not in use and probably date from when the building was a single family farmhouse. Both first floor units also have their own exterior doors.

15. 21:28
    Whether walling it off creates a new problem

    Asked by Mil whether closing the door with a wall leaves a stairway running up to a wall, the answer was yes, blocked top and bottom, leaving an empty stairwell. Chief Moore (?) said that does create a void space in which fire can travel, which is why both sides need rated material; left open to the studs it would be a serious concern, but closed off with rated material it is simply a void space.

16. 21:28
    No additional doors would be required

    The board confirmed that if the stairwell were enclosed, no new doors would be needed, because the rule requires one door and one egress window per unit and both first floor units already have exterior doors. The only reason to keep the internal doors, rated and locked on both sides, would be an intention to use the space later as a two-floor apartment.

17. 26:55
    The appellant asks when she may speak

    Helen Lord (?) asked when she would get a chance to talk. The chair said the board was first establishing what the town saw as a violation and what it says would fix it, and that she would have all the time she wanted.

18. 26:55
    Zoning history of multi-units in the district

    Bob Forest set out that in 1990 a conditional use permit was needed for a multi-unit in the rural residential area where the property sits, that in 2004 the ordinance allowed only a duplex there, and that the ordinance adopted in 2005 and amended over following years allowed multi-units again with a conditional use permit. The December ordinance did away with multi-units altogether.

19. 26:55
    District and overlay

    The property is in the rural residential area and in no overlay, and was not in the Southwest Bend district. The chair read italicised commentary at page 12 of the ordinance saying multifamily was only allowed in the Southwest Bend district and will be eliminated with it, and the board settled on treating the property as a conditional use.

20. 26:55
    Two means of egress from each unit

    Terry (?) asked whether blocking the hallway doors would still leave two means of egress from each apartment. The answer was that the requirement is one door and one egress window in the bedroom, that the units have doors, and that the unused hallway doors could not serve as egress in any case, so blocking them changes nothing.

21. 31:56
    Existing windows measured against a lower standard

    Because the units are existing, the egress window requirement was given as five square feet rather than 5.7, so those windows are acceptable. It is the second floor unit that accounts for most of the outstanding issues.

22. 31:56
    No conditional use permit on file

    Asked directly whether there is a conditional use permit for the property now, Bob Forest (?) said there is not. Chief Moore had nothing further to add, and the chair invited Helen Lord to give her position, asking her also to cover the ownership history, which is not in the written record.

23. 31:56
    Helen Lord's account of the building

    She said she managed the building for about 20 years before she owned it and has taken care of it for 50 years, through the 1970s and 1980s, buying it after the previous owner died unexpectedly in 1986. She had found an old letter she wrote at the time while trying to trace the heirs and executor, and offered a copy to the board as evidence that the property has been as it is for 50 years.

24. 37:14
    What she is willing and unwilling to do

    She said she wants the property safe but does not think all of this is needed, and has decided to have the electrical upgrades done by Frank Hilton of Harpswell, a licensed electrician and retired Harpswell fire chief. She opposes blocking the staircases, which she said give two ways out of the building, opposes replacing brand new windows with larger ones, and said her electrician regards the fire doors as a waste of time and money apart from one.

25. 42:19
    The building was three units when she bought it

    Gary Wood established that she bought the property in the late 1980s, probably 1987 or 1988, and that it was in the same configuration then, with three separate living units. The previous owner came to Maine one week a month and kept the third unit, the one towards the barn, for himself, and it was also used as a three-unit in the 1970s when she managed it.

26. 42:19
    Whether she is being singled out

    Helen Lord (?) asked whether the town checks other income properties in Durham or whether she was being singled out. Chief Moore (?) said he initiated the complaint, that it did not come from a random stop and inspection but from a 911 call about an alarming smoke detector, and that once on the premises he was bound to have the condition managed; any other property in the same condition would be treated the same way. She said the detector was old and beeped and there was no smoke, and he said he was the first one in the building.

27. 42:19
    Complaint-based enforcement

    Gary Wood (?) said most Maine communities from the smallest to the largest respond on a complaint basis because they lack the personnel, time or money to inspect every unit in town, and that they do not pick on people, but once their attention is drawn to a property they cannot look the other way.

28. 42:19
    The April 20 consent agreement never reached her

    Gary Wood (?) said the appellant's letter and the fire chief's proposed consent agreement of April 20 looked close together. Helen Lord (?) said nothing had been offered or shown to her, that she had never seen the letter, and that a phone conversation left her unable to tell what was meant. Chief Moore (?) said he forwarded his recommendations to the code enforcement officer, understood she did not want to have the discussion, and had never spoken with her before that evening.

29. 47:57
    What the town was offering

    Gary Wood (?) urged her to read the letter and talk to the officials, saying they had come a long way towards her. The proposal would let her use certified battery-operated smoke detectors, and a CO detector plugged into an existing outlet, which would avoid the expense and disruption of rewiring.

30. 47:57
    What happens if the appeal is denied

    Gary Wood (?) told her plainly that if the board does not grant the appeal, the town's original enforcement order is what stands and what she has to comply with, unless she appeals the board's decision to court. He said an appeal takes a lot of time and money and often does not produce a good result for anyone.

31. 53:14
    The 2013 transfer to a living trust

    Town records, which Bob Forest had done his best to decipher, show ownership by Helen S. Lord and then a transfer to the Helen S. Lord living trust in 2013. The chair said that although it is the same person it is a different entity making an acquisition, and that this formality has meaning in law, particularly where the use is allowed only as a conditional use. That transfer, after the October 2009 trigger date, is why nothing is grandfathered.

32. 53:14
    No renovations since the 1980s

    Helen Lord (?) said nothing had been redone and no walls changed since she bought it, only cleaning and painting, though she had put in some new windows. Bob Forest (?) said replacing a window with another window needs no permit as long as no framing members are added or removed, and the chair noted the ordinance's article on non-conforming uses allows unpermitted normal upkeep and maintenance.

33. 53:14
    Insurance warning

    Gary Wood (?) said that from his own experience, where a property has code violations the owner knows about, insurers request town documents after an incident and look for reasons not to pay. If a policy excludes cover for a building not in compliance with local codes, he said, her own personal assets could come into play.

34. 58:14
    She asks for the letter to be posted

    Helen Lord (?) asked that somebody mail her the letter so she could at least see it, giving an address in Brunswick, and said she would review it with her electrician.

35. 58:14
    Plug-in CO alarms accepted

    Chief Moore (?) said that after speaking with the fire marshal's office, plug-in CO alarms with battery backup meet the intent of the code, being treated as an extension of the building's hard wiring with the battery covering power failure. A board member said that on that basis her money would be better spent on a carpenter for the doors or walls than on an electrician.

36. 58:14
    The historic building argument

    Helen Lord (?) said she would consult a historical society and objected to tearing the building apart for a window. Chief Moore (?) said egress matters as much for the occupant getting out onto a ladder as for firefighters going in, and that a second floor means of egress emptying into another living quarters is a separate and more expensive code problem. Gary Wood (?) said that from his time working in Portland, historic preservation does not trump safety, citing gas pipes and meters that had to be run outside historic buildings in the city's historic district.

37. 1:04:04
    How long this has been running

    Chief Moore (?) said the issue was first discovered on March 25 and is well over a month old, and that it became contentious over getting temporary smoke detectors into the apartments, to the point of telling her the building would be petitioned to be emptied if it was not done within 24 hours. Helen Lord disputed that, saying each apartment already had a smoke detector. He said he would email the letter and post it as well, and that as a life safety issue he did not want it going more than another week without resolution.

38. 1:04:04
    No conditional use permit needed or available

    Asked by Terry whether she has to obtain a conditional use permit, Bob Forest (?) said no: it is an existing three-unit, the December ordinance no longer permits multi-units so no such permit is available, and she simply has to meet the life safety minimum requirements, which are far less than a new building would face.

39. 1:09:19
    Where the firewall requirement comes from

    Asked what makes the firewall and fire door provisions apply to a pre-existing building, Chief Moore (?) said he believed those are also within title 25, which addresses the NFPA standards and the edition the state has adopted. The chair summarised that as a matter of law, as a result of the 2013 transfer, all of these provisions apply.

40. 1:09:19
    Tax card and the age of the third unit

    The three-unit does not appear on the tax card until 1989, though Helen Lord (?) said it was there in 1970. The board noted that is not unusual, since such things often are not picked up until a revaluation.

41. 1:09:19
    Offer of a one-week postponement

    Gary Wood (?) said he was willing to move to postpone for a week to the same time the following Thursday, but wanted a sense from Helen Lord that she would read the letter and try to work it out with the town, saying he did not want to waste anybody's time. She argued her electrician, a former fire chief, should approve what she does, and the board replied that he would have to give a written statement citing the authority for his position within three or four days, and that an assertion that something is a waste of money does not meet the burden of showing the town has the law wrong.

42. 1:14:23
    The March 30 notice read into the record

    The chair read from the letter Bob Forest sent on March 30: on inspection he found the three units very unsafe for a multi-unit dwelling, with smoke, CO and egress the most pressing issues, citing Maine title 25 section 2464 for the detectors and 2468 for the CO detectors, and egress under the 2015 IRC chapter R302, with the last paragraph pointing to the NFPA sections requiring the fire doors or the fire retardant wall.

43. 1:14:23
    Availability for a reconvened hearing

    The board checked that all members could attend at 6:30 the following Thursday and that Bob Forest and Chief Moore could be there. It was noted that the Zoom address changes every time, is announced in the news, and is emailed to the parties.

44. 1:20:09
    Quorum and the decision to proceed

    The board confirmed four members present against a quorum of four, with a fifth member not on the call. Because Helen Lord (?) said she would see her lawyer before deciding, Gary Wood (?) said he would not move the postponement, and the chair turned to the merits, saying she had heard no legal evidence that the town got it wrong.

45. 1:20:09
    Reading of the non-conforming use provision

    The chair noted the ordinance allows without a permit the normal upkeep and maintenance of non-conforming uses and structures, including such changes as federal, state or local building and safety codes may require. She read that as contemplating that codes will change and buildings will have to adapt, and said a building having been lucky is not something an owner can rely on.

46. 1:20:09
    Vote on the appeal

    A motion was made that on the basis of the documents and the testimony of the code enforcement officer and the fire chief, and the lack of any contrary evidence from the appellant, the appeal be denied and the code enforcement officer's notice of violation be sustained. It was seconded and the members present voted in favour.

47. 1:20:09
    Written decision and appeal rights

    Because Gary Wood is out of the country, the chair will draft the decision and send it to him for feedback before it is signed and issued on behalf of the board. The board agreed the decision should state the appellant's right of appeal and the timeframe, which it believed to be 30 days, and the chair told Helen Lord directly that her appeal was denied and that she has 30 days to file with the superior court.

48. 1:20:09
    Close of the hearing

    No public input was taken, the chair noting that nobody present appeared to have particular standing as an abutter or tenant. A motion to adjourn was made and seconded. Tammy (?) said the recording was already up on the town hall stream, and that Kathy would do the minutes as usual.

What was decided

• 1:04:04
  Chief Moore agreed to email and post the April 20 proposed consent agreement to Helen Lord, who said she had never received itpassed
• 1:09:19
  A one-week postponement, to let Helen Lord (?) read the town's letter and try to settle with the town, was offered by Gary Wood but never moved, after she said she would see her lawyer before decidingoutcome unclear
• 1:20:09
  Deny Helen Lord's appeal and sustain the code enforcement officer's notice of violation, on the basis of the documents and the testimony of the code enforcement officer and the fire chief and the absence of contrary evidence from the appellant; seconded, with the members present voting in favour, and the chair then telling the appellant the appeal was deniedpassed
• 1:20:09
  Agreed, without a vote, that the chair would draft the written decision and send it to Gary Wood for feedback before signing it on behalf of the board, and that it would set out the appellant's right to appeal to superior court within 30 dayspassed
• 1:20:09
  Adjournpassed

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

Worth knowing

• 53:14
  The building has been three units since the 1970s, but a 2013 transfer from Helen S. Lord to the Helen S. Lord living trust came after the October 31, 2009 trigger in Maine title 25, so nothing is grandfathered. The board treated that formality as the legal basis on which the detector, egress and fire separation requirements all apply.
• 42:19
  Helen Lord (?) asked whether she was being singled out. Chief Moore (?) said the matter came from a 911 call about an alarming smoke detector rather than a random inspection, and that any property found in the same condition would be handled the same way. Board members added that most Maine towns enforce on a complaint basis because they cannot afford to inspect every unit.
• 47:57
  The town's April 20 proposed consent agreement, which would have accepted certified battery-operated smoke detectors and a CO detector plugged into an existing outlet instead of rewiring, never reached the appellant. She said she had never seen it and the fire chief said he had never spoken to her before the hearing.
• 1:20:09
  With the appeal denied, the original March 30 enforcement order stands rather than the town's compromise offer, and Helen Lord has 30 days from the written decision to appeal to superior court.

Motion language found in the transcript

Located by pattern matching, with no model involved: "I move that", "I'll second", "all those in favour". This is an independent check on the summary above: 2 passages of motion language, against 5 decisions summarised.

Elsewhere

2020-11-17 Board of Appeals →All meetings