6 Church Street, Gardiner, Maine 04345
 CITY OF GARDINERBOARD OF APPEALS
REGULAR MONTHLY MEETING MINUTES
June 28, 2005
Present: Michael Eldridge, Chairperson Kendall Holmes
Judith Skehan Rebecca Malinowski
Absent: Andrew MacLean
Also present: Barbara E. McPheters, Code Enforcement Officer (CEO)
Dorothy Morang, Recording Secretary
David Owen Antonio Genevese Peggy St. Pierre
Lou Parent Tammy Usher Leroy Usher
1.) Chair, Mike Eldridge called the meeting to order at 6:05 PM, Chair followed by the Pledge of Allegiance.
2.) Roll call was taken.
3.) Kendall Holmes made a motion to accept the May 25, 2005 minutes. Rebecca Malinowski seconded the motion.
Vote: 3 in favor. 0 opposed. 1 abstained (Judy was not at meeting). Motion passed.
NEW BUSINESS
PUBLIC HEARING - Variance
David R. Owen requests a variance of twenty-six (26) feet from the thirty (30) foot side setback requirement to establish a dwelling unit within an existing structure in a multi-family dwelling at 102 Highland Avenue on Map 36 Lot 146 in the High Density Residential (HDR) Zoning District.
Mr. Owen introduced himself and indicated that he lives at 102 Highland Avenue. He said that he was granted a front variance last meeting and now needs a side variance. This is necessary to build an apartment in the barn. The building has been there for 150 years and there is no way to get a thirty (30) foot setback.
Chair Eldridge asked if all of the abutters were notified. Barbara said yes. Kendall asked Barbara if there were any other comments received. Barbara said no.
6:12 PM Opened meeting to public. No public comment.
6:12 PM Closed meeting to public.
Kendall said it’s a nice old building and a practical solution of what to do with an old building. It would be a shame not to find a use for it. Any use wouldn’t meet the setbacks.
The Board members reviewed each of Criteria A. through F. and Mr. Owen’s responses.
Kendall Holmes made a motion that we grant Mr. Owens a variance of 26’ off of a 30’ setback requirement in order to use this building as an apartment unit and agree that he has met all six criteria that the City has set out. Rebecca Malinowski seconded the motion.
Vote: 3 in favor. 1 opposed (Mike Eldridge). Motion passed.
Kendall Holmes - Agree he has met the City’s Criteria
Judy Skehan - Agree with Kendall
Rebecca Malinowski - Has met all 6 criteria
Public Hearing - Variance
5.) Antonio Genovese requests a variance to reduce the lot size requirement from 60,000 S.F. to 51,800 S.F. to recreate two (2) lots from one parcel to build a single family dwelling on each lot. The property, located at 785 Brunswick Avenue, City Tax Map 16 Lot 7B, is in the Planned Development (PD) Zoning District.
Mr. Genovese introduced himself and indicated that he purchased the land in January 2005 and found out it used to be two lots. The previous owners combined them for tax purposed and he would like to change them back to two lots and build two houses on them.
6:24 PM Open the meeting for public hearing.
Lou Parent, an abutter, shared with the Board that Mr. Genevese knew it was one lot when he bought it and it did not meet the area size for two lots. He is concerned that with the current design it doesn’t allow for any garage or outside storage on the lots. Also he is concerned that another developer could come in and ask the Board to reduce the requirements also and this would set a precedent.
Kendall asked about the fact that the lot used to be two lots. Barbara indicated that the two lots had been combined because they were in common ownership, contiguous and non-conforming. Kendall asked Mr. Genevese if he bought 1 lot and then the other. Mr. Genevese said one lot. Rebecca asked if there were still two lots with two separate owners, could they build. Barbara said yes, as long as they could get a sub-surface wastewater system on each and still meet the setbacks. Barbara referred to the Land Use Ordinance section concerning Non-conforming lots of record. Rebecca asked about the setbacks. Barbara gave her the dimensions.
Kendall asked if we know what the Board of Appeals has done previously with this type of variance request? Barbara said she doesn't know. The Ordinance does allow for the reduction of lot size.
Mike Eldridge said 1 lot would be awkward because of its size. He does not oppose two lots. Any building would be controlled by the CEO so he wouldn’t be concerned.
6:40 PM Close Public hearing.
Members reviewed the applicant’s responses to the criteria.
Kendall said he is struggling with this. Common sense tells him there is enough land to build two houses, but the City set out minimum lot sized and Mr. Genevese bought a piece of land knowing what the minimum lot size was and now he’s asking us to ignore that. He said maybe Mr. Genevese could buy land from an abutter to add to it. Kendall said he has a real problem with Criteria C & D because yes, there is another feasible alternative and yes, the applicant knew what he was buying and what could be done on it.
Judy said she was hoping he could buy some additional land
Rebecca said she can’t agree with all of the statements. If we grant the variance and reduce the lot size requirement, what’s to say down the road someone else does the same thing.
Judy said the lot size requirement is so we don’t have a Highland Avenue and also what about when others want to do it.
Mike said we just gave Mr. Owen a very large variance. Looking at the size of the lot, it would be very difficult to put one house in there with all this other acreage.
Kendall said that he understands the concerns of the neighbors, you have piece of property, the guidelines are on the books already and then we’re being asked for a variance to split it. What do you do if another developer come along and wants to do the same thing, do you give him a variance too?
Judy asked, does it set a precedent? Barbara said each is reviewed individually, however, the perception is that if you do for one you have to do for others.
Mr. Genevese said that he bought the land for one house but then he thought it might be good for two houses.
Mike asked if the Board of Appeals has the power to regulate foliage, etc. Barbara said it would be unusual for the Board to put buffering requirements on. The only time you might put buffer requirements on was due to a violation.
Kendall said that the applicant bought the property as one lot with the intent to build one house. The practical difficulty is the result of his decision.
Mike Eldridge made a motion that we do approve this variance. There was no second.
Kendall Holmes made a motion that we deny the Dimensional Standards Variance because the petition does not meet at least two of the criteria, D and C. Rebecca Malinowski seconded the motion.
Vote: 2 in favor. 2 0pposed (Mike Eldridge and Judy Skehan)
Judy asked Mr. Genevese if he knew when he bought the property that it wasn’t big enough. Mr. Genevese said he knew it.
Kendall said that whether or not he agrees about the minimum lot sizes, the City Council and the Planning Board set down minimum lot sizes. We’re talking about new construction. Waiving minimum lot sizes does set a precedent. He checked it out and can’t find in the last five years where the Board of Appeals ever granted something like this. Whether he agrees or not, there are other things that the applicant can do. He could sell the excess land to an abutter or try to buy some.
Mr. Genevese said that ¼ mile up the road there are 8 lots all less than an acre a piece. Barbara said we can’t make a decision on what other properties did. It may have been in a different district and we have to look at the lot at this time.
Rebecca said she agrees it’s not an undesirable change, ½ acre is enough for a house, but it would set a precedent if we approved this.
Mike said he has read the Dimensional Standard Variance definition and does take exception to C.
Kendall Holmes made a motion that the Variance be denied. Rebecca Malinowski seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
7:20 PM break
7:30 PM meeting resumed.
Public Hearing - Variance
6.) Leroy Usher requests a variance of seven (7) feet from the ten (10) foot side setback requirement to construct a deck. The property, located at 4 Maple Street on City Tax Map 33, Lot 94, is in the High Density Residential Zoning District.
Mr. Usher said that he is trying to build a deck and to allow front and side egress. It will be 22’x12’ and include a 4’ wide steps.
Kendall asked if the house at its closest point is 9’. Leroy said yes.
Judy asked if the neighbors had any concerns. Leroy had a letter from then saying that it was ok with them. Now the area is a rocky hill and the deck would be better.
Kendall asked if he could put it anywhere else? Leroy said they prefer the back because they have three kids and currently there are steps there. Kendall noted that it was a narrow lot.
7:31 PM open meeting for public comment.
7:31 PM close meeting for public comment.
Rebecca Malinowski made a motion to approve the variance of 7 feet from the 10’ side setback requirement. Judy Skehan seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Rebecca said it met all of the 6 variance criteria.
Mike agreed and added that the abutting neighbor was for it.
Judy said she agrees with the others and it enhances the neighborhood
Kendall said is has met all 6 criteria.
7.) Adjourn
Judy Skehan made a motion to adjourn. Rebecca Malinowski seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Meeting adjourned at 7:43 PM
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