TOWN OF LIMINGTON

APPEALS BOARD MINUTES

Monday, February 5, 2007

 

CALL TO ORDER:

 

The meeting was called to order by Kenneth Gardner, Chairman at 7:05 p.m.

 

Regular members present: Kenneth Gardner, Robert Axelsen, Russell Peter Berg, and Bruce Rozett.

 

Alternates present: Doug Hubbard.

 

Also present: Ron Phinney, CEO, & Beverly Foss, Secretary.

 

AGENDA:

 

APPROVAL OF MINUTES:

 

The chairman asked the Board to review the minutes from the last meeting, January  16, 2007. Bruce Rozett noted that a court case that he cited was omitted from the minutes and should be in them. He will send that information to the secretary and she will revise the minutes. They will be brought up for approval at the next meeting.

 

MOTION: Doug Hubbard moved that we table the approval of the January 16, 2007 minutes until the pertinent material was added. Seconded by Bruce Rozett. All in favor.

 

Chairman Gardner noted that Board Alternate, Doug Hubbard, would be sitting in for regular member, Ruth Adams, in her absence.

 

FRANCIS SMALL HERITAGE TRUST ADMINISTRATIVE APPEAL OF HIGHLAND SUBDIVISION

 

Chairman Gardner began the meeting by referencing the request in the appeal regarding members of the Appeals Board recusing themselves from hearing this appeal to ensure there was no hint of bias or conflict of interest. He asked David Lourie, attorney for the Francis Small Heritage Trust (FSHT) to offer his concerns.

 

Attorney Lourie requested that Chairman Ken Gardner recuse himself on the basis that he has benefited financially from this subdivision in that he did the soils tests. Chairman Gardner stated that he had done this work as this is his business, that the Childs have paid him for his work, and they owe him no outstanding debt. He stated that he has no outstanding contract at this time with the Childs, nor does he have any expectation or hope for further work for the Childs, though that always could be a possibility.

 

At this point, Chairman Gardner relinquished the chairmanship over to Bruce Rozett, since the discussion was regarding himself. The Board was all in favor of this.

 

Mr. Lourie cited Tuscan vs Smith, a case in which a court had a test for disqualification. Ken Gardner then assured Mr. Lourie that he could operate with impartiality. Bruce Rozett then asked Mr. Lourie, members of the audience, and the other member of the Board if they had any further questions or comments. No one responded. Bruce asked Ken if he could be completely impartial in reviewing this appeal. His response was again, yes.

 

The chairmanship was then returned back to Ken Gardner.

 

Attorney Lourie then brought up that Doug Hubbard had testified at the Planning Board level, and questioned whether he was biased as to this case. Doug Hubbard asked Mr. Lourie to show him what he said. Mr. Lourie could not produce any documentation to that affect. Bruce Rozett reminded Attorney Lourie that the proof of bias lies with the applicant, which in this case is the FSHT. Mr. Lourie asked Doug if he was pre-disposed to or had a closed mind to this matter. Chairman Gardner asked Doug if he could review this application with impartiality. Doug stated that he could be impartial because he follows the ordinance and will make his judgment based on the ordinance.

 

Russell Berg and Ken Gardner both referred to the section of the Appeals Board Manual (M.M.A. publication) regarding bias at different points during the discussion.

 

Chairman Gardner announced that these matters were settled, and the Board would remain seated as such.

 

Attorney Lourie then took the podium and stated the Trust’s case. They have filed this appeal as an administrative appeal and to request an interpretation of the Zoning Ordinance regarding certain zoning issues within the Highlands Subdivision off of the Norton Road in Limington. The Limington Planning Board approved the Highlands Subdivision on October 23, 2006. They also approved Lot 7 in the subdivision with the conclusion that “No Conditional Use Permit is necessary for the development of Lot 7.”

 

Some of the points he made were as follows:

 

1.      Lot #1 of the subdivision is a tract of land that is an unbuildable lot. It is illegal to allow a non-conforming lot in a subdivision. Lot #1 does not have the required frontage, and you can’t create new non-conforming lots. You can’t leave a residue which doesn’t meet the Zoning Ordinance requirements.

2.      Lot #6 is a problem because it is next to the Old Hale Road, a discontinued town road. Also, Norton Road is a substandard road, only 3 rods wide. The road serving the subdivision should be 60’ wide. He said that in order to qualify for approval, the subdivider must bring Norton Road to the minimum width standard. He states that the developers need to retain land for the widening of Norton Road. He says that Section 10.3.2.9 of the Subdivision Ordinance states that they must make up that deficiency.

3.      Since Limington’s Board is a Zoning Board of Appeals, not a General Appeals Board, they are limited to hearing and deciding on Zoning Ordinance issues only.

4.      Lot #7 is served by an access road over a right-of-way and has no frontage on a public road. It is located in the Resource Conservation Zone. He discussed lot lines, length and depth of the lot, the building envelope, and frontage requirements. He also was referring to the subdivision plan approved on June 11, 2006. This was not the final, signed plan, therefore, Mr. Lourie submitted his copy to the board.

5.      In its Notice of Decision, the Planning Board waived the Conditional Use Permit requirements for Lot 7.  He contends that the Planning Board could not waive this requirement because this lot is in the Resource Conservation Zone.

 

John Shumadin, the attorney representing Linda and Pete Childs then took the podium. His points were:

1.      Lot #1 is not considered a lot in the subdivision. It is just a tract of land and they are not creating anything illegal. This land abuts other land owned by Linda Childs which is not part of the Highlands Subdivision.

2.      Mr. Lourie contended that Lot #6 would not meet minimum lot size once the residual land for road widening was removed from it. Mr. Shumadin said this is a subdivision issue, not a zoning issue.

3.      On Lot #7, the lot lines and length and width of the lot will be determined in reference to where a house might be placed within the building envelope on the lot.

4.      Lot #7 is not accessed by an easement serving 3 or more properties. The final, approved subdivision plan states that this access road only serves two lots…..lots 4 and 7.

 

The next speaker was Phil Reed, surveyor of the subdivision. He stated:

1.      The easement only serves 2 lots.

2.      The hydrogeological survey required by the Planning Board was done. They also provided a letter of clarification from the engineer who did a detailed report of Lot #7.

3.      The Planning Board did not waive requirements of the Zoning Ordinance. Their opinion was that they could review the subdivision and do the Conditional Use at the same time.

4.      Regarding the fact that the FSHT  says that the notice requirements of the Zoning Ordinance were not met for the Conditional Use Permit on Lot #7, he said that this was discussed at numerous Planning Board meetings and the representatives of the FSHT were allowed to speak. They were at the public hearing so they had ample chance for due process.

5.      Lot #6 is over the required 120,000 square feet in size. The Planning Board determined that Norton Road is not a substandard road, so this is not an issue.

6.      The Childs have taken Lot #1 off the plan as a building lot, pending the resolution of a cemetery on the lot. They never said that Lot #1 was a buildable lot.

 

At this point, there was a 10 minute recess in the proceedings.

 

After the break, Attorney Lourie questioned Mr. Reed regarding how many lots could be accessed from the access road and whether they thought that Lot #3 might use that road in the future.

 

Chairman Gardner then asked if there was a member of the Planning Board present who would be willing to speak about the Board’s decision to waive the requirement of a Conditional Use Permit on Lot #7.

 

Wayne Plummer, a member of the Planning Board agreed to speak to this. He said he wouldn’t speak for all the board, just himself, but that he felt they were only speaking to lot creation and that it would eventually need a Conditional Use Permit when a house was erected, because it was in the Resource Conservation District.

 

Peter Childs then said that they are not opposed to the requirement of a Conditional Use Permit to anyone who develops Lot #7.

 

Mr. Lourie passed out copies of his proposed Conclusions and Findings to the Board.

Chairman Gardner closed the public hearing portion of the meeting. The Board decided they would take up each issue, as presented in the appeal, one at a time.

 

Issue #1:

Bruce Rozett read the definitions of lot lines from the Zoning Ordinance and said that the front lot line for Lot #7 is the one that abuts Lots 4, 5 &6. The width of Lot #7 is almost 1400 feet. The lot has several times the necessary frontage. The Ordinance defines width definitively.

 

MOTION: Bruce moved that Lot #7 did meet the frontage and width requirements of the Limington Zoning Ordinance. Seconded by Doug Hubbard.

 

FINDING OF FACT:

1.      Based on the definition of front line in the Ordinance, Lot #7 has in excess of 1400 feet.

2.      The rear line is 1400 feet long.

3.      The lot is well in excess of the 500’ frontage requirement.

 

All in favor. Motion passes unanimously.

 

Issue #2:

It was discussed that the Board had the legal authority to accept the new data provided in the Letter of Clarification to the Hydrogeological Survey.

 

MOTION:  Russell Berg moved that the Hydrogeological  Survey, as clarified, proves that the drinking water is within acceptable standards. Seconded by Bruce Rozett.

 

FINDING OF FACT:

1.  The Letter of Clarification submitted by Sevee & Mahar Engineers.

 

                                    All in favor. Motion passes unanimously.

 

Issue #3:

It was discussed that the terminology used in the Planning Board’s minutes and the Notice of Decision of October 23, 2006 was wrong. (Land Use Table in Zoning Ordinance, pp 31 & 32).

 

MOTION:  Bruce Rozett moved that we notify the Code Enforcement Officer and the Planning Board that Lot #7 must still adhere to the Land Use Table, Section 6. Seconded by Doug Hubbard.

 

FINDINGS OF FACT:

1.      Wayne Plummer’s testimony.

2.      The Minutes and Notice of Decision of October 23, 2006 are in conflict with the Limington Zoning Ordinance.

3.      The applicant acquiesces that this must be done.

 

All in favor. Motion passes unanimously.

 

Mr. Lourie started another discussion stating that the subdivision applicant needs to prove that no more than two lots would be served by the 15’ access road. Mr. Reed pointed out that condition #14 on the Final Subdivision Plan already covers this. If and when someone purchases Lot #7 to build a house on it, they will need to apply for a Conditional use Permit.

 

MOTION:  Bruce Rozett made a motion that as far as the access road is concerned, condition #14 on the Final Subdivision Plan meets the requirements of the Zoning Ordinance.  Seconded by Doug Hubbard.

 

All in favor. Motion passes unanimously.

 

Issue #4:

It was noted that this issue was moot because given that the Planning Board was approving the subdivision, Section 9.H (Site Review) requirements were followed. Proper public notifications were provided for that.

 

MOTION: Bruce Rozett moved that given that the Planning Board followed all of the hearing requirements of Section 9.H of the Limington Zoning Ordinance, a separate Public Hearing and notification process for Lot #7 was not required. It will be required if and when Lot #7 is built on. Seconded by Bob Axelsen.

 

FINDINGS OF FACT:

1.      Wayne’s testimony from the Planning Board.

2.      Participation by the FSHT on all levels of the subdivision approval.

 

All in favor. Motion passes unanimously.

 

Issue #5: 

This is a subdivision issue. There is nothing in the Limington Zoning Ordinance to support the subtraction of land to increase the width of Norton Road. The Planning Board did not consider Norton Road a narrow road.

 

MOTION:  Bruce Rozett moved that the Appeals Board find that the Planning Board properly reviewed the status of Norton Road and that the minimum lot size for Lot #6 is met. Seconded by Russell Berg.

 

FINDING OF FACT:

1.      The survey plan indicates that Lot #6 has 121,000 square feet, which is in excess of the minimum requirement.

 

All in favor. Motion passes unanimously.

 

Issue #6:

Section 5.B.4.D. Combining Lots, requires that what was previously known as Lot #1 would be combined with the adjacent lot owned by Linda Childs.  If the Childs want to build on Lot #1, they’d have to go back to the Planning Board.

 

MOTION:  Bruce Rozett moved that given what was previously known as Lot #1 is not part of the approved subdivision, all lots in the Highlands Subdivision meet the minimum road frontage requirements of the Limington Zoning Ordinance.  Seconded by Bob Axelsen.

 

FINDINGS OF FACT:

1.      Condition #24 on the Final Subdivision plan.

2.      The adjacent property is owned by Linda Childs.

3.      Section 5.B.4.D says that it is acceptable for the Planning Board to leave a non-conforming lot because it is under co-ownership.

4.      Lot #1 is not part of the subdivision, therefore the Planning Board did not approve a non-conforming lot.

 

All in favor. Motion passes unanimously.

 

Chairman Gardner told the appellant that we would try to get a Notice of Decision to them within 7 days.

 

ADJOURNMENT:

 

MOTION: Bob Axelsen moved that the meeting be adjourned. Seconded by Doug Hubbard.  All in favor. 10:45 p.m.

 

 

Respectfully submitted,

 

 

 

Beverly Foss

Secretary

 

These minutes are an unattested copy.