6 Church Street, Gardiner, Maine 04345
 CITY OF GARDINERBOARD OF APPEALS
REGULAR MONTHLY MEETING MINUTES
(Rescheduled from November 22, 2005)
December 14, 2005
Present: Andrew MacLean, Acting Chair Kendall Holmes
Judith Skehan Harlan Brown
Absent: Michael Eldridge, Chairperson Rebecca Malinowski
Also present: Dorothy Morang, Recording Secretary
Waldo Gilpatrick, Code Enforcement Officer
Harvey DeVane Lynn DeVane Edward Potter
Diane Potter Phillip Barter Erik Stumpfel, Representing City Of Gardiner
1.) Acting Chair, Andrew MacLean called the meeting to order at 6:04 PM, followed by the Pledge of Allegiance.
2.) Roll call was taken.
3.) A motion was made and seconded to approve the August 8, 2005 minutes.
Vote: 4 in favor. 0 opposed. Motion passed.
NEW BUSINESS
4.) Administrative Appeal
Harvey and Lynn DeVane have filed an Application for an Administrative Appeal of a written decision by Waldo Gilpatrick, Code Enforcement Officer, dated October 25, 2005 in response to the Applicants’ pursuit of single family residence classification of the Applicants’ home at 66 School Street in Gardiner, ME. The property, located at 66 School Street, City Tax Map 34 Lot 193 is in the High Density Residential (HDR) Zoning District.
Acting Chair Andrew MacLean introduced Item 4 and reviewed the procedure for an Administrative Appeal as described in Section 4 of the Land Use Ordinance. He asked if there were any Board members who feel they cannot act in this matter without the appearance of impropriety or feel there is any reason to recuse themselves. There was no one. Chair MacLean noted that he is a member of the Board but acting as the Chair because the Chair, Mike Eldridge has recused himself. Andrew also disclosed that he does know the DeVanes, they are neighbors, but he does not feel that he cannot act fairly. The other Board members were ok with his disclosure.
Acting Chair MacLean determined that the Applicant has standing and the Application is complete. He asked the City Solicitor, Erik Stumpfel who was present, if they need to swear in the Applicant. Erik said he does not believe so. Erik also noted, for the record, that he was asked to be here in an advocacy role to present the City’s case and not as the Board’s counsel. Kendall Holmes asked Mr. Stumpfel if there are any other procedures that are different for the Board in terms of what they can and cannot do. Erik said that the essence of the de novo proceeding is that the Board hears the evidence tonight; the record is made tonight and the Board’s decision is based on the record made tonight and not on whatever action took place previously by the Code Enforcement Officer
(CEO) or what materials the Code Officer used.
Acting Chair MacLean noted that the Applicant would present first, followed by the City and then the public hearing. He asked the Applicant, Harvey DeVane to present his appeal.
Harvey DeVane, Applicant said he would like to begin by addressing 3 things. He thanked the Board members for being here at this time of year.
At the time he submitted his application, he asked if the City of Gardiner was going to have legal counsel at the meeting and was told no, so he prepared his own case. When he arrived, he found that the City of Gardiner had legal counsel, but is not discomforted because he is sure the City Solicitor is a fair man.
He also went to the City Council complaining about the Ordinance because to overturn a determination by the CEO, one needs four votes. On a 7 person board, it would be nice to have seven people. The City told him recently that it had filled two vacancies, but it would be good to have better than this.
Harvey said that he had applied in March 29, 2004 in the prescribed manner, using the forms given him to have their house, built in 1877/78, which is a one family house with two kitchens, reclassified as a dwelling unit, single family house, in terms of the code. Harvey distributed additional information to the Board and the City. Harvey & Lynn were issued a permit, yet, he said, reclassification has been refused based upon an unwritten policy and previously undisclosed policy. He referred to a letter from the CEO and a blank application. The application form is the only form the City uses. This denial of due process is unsupported by any provision contained in the Ordinance itself. Due process is a requirement of the Maine and Federal constitutions that limits instrumentalities of
government or restrains their actions within limits of fairness. He reminded the Board that this is an appeal de novo, which means anew. The Board has the sole and total legal authority to decide the issues before them tonight. He and his wife have met and continue to meet all of the requirements of the local Land Use Ordinance and they contend that they have already qualified for and received the now denied reclassification. They ask the Board, in simple fairness, to overrule the City’s unwritten and undisclosed policy. The City’s Ordinance, as noted in Appendix D, supports their contentions. The core of their dispute is, and the facts are these, they stated their intentions and applied in the prescribed manner on the forms provided, for building and plumbing permits and to reclassify it a single family home. The required permits were issued. That constituted approval, not just of the construction, but also of the use they
asked to make of the premises.
Harvey gave a history of the house and its use. It was built as a single family home with two kitchens and converted to a two family. The next tenant had a family member in part of the second floor. Harvey bought it twenty-one years ago and has been renovating it for some time. He has used it as a single family home. He introduced Erik Stumpfel’s (City Solicitor) memo and does not quarrel with the facts, but disagrees with the last paragraph on page one. Harvey said there is nothing on the Building Permit application to address change of use. If the form is inadequate, the City can’t hold a citizen responsible. The Ordinance contains no limitation on what a single dwelling unit is. There are no restrictions on sinks, stoves, etc. Harvey said he
applied for a permit to remodel and change of use and it was approved. He referred to three court cases to support his case.
City Solicitor, Erik Stumpfel, said that the decision has to be based on the City’s Ordinance and not on any unwritten policy. He indicated that the Ordinance District Uses Chart shows that Mr. DeVane’s property can be used as either a one or two unit. He quoted the Ordinance definition of a “Dwelling Unit”. Erik said that the access and building interior have not changed since it had been a two family, that the renovation work had not been completed. He said that Mr. DeVane had alluded to that with his appeal filed to the CEO October 25, 2005. The property has two kitchens, two baths, and the same configuration as when it was used by a tenant. Mr. DeVane has asked the CEO to rule to allow Mr. DeVane to get a circuit breaker refund. The Board of Appeals is not
entitled to determine if Mr. DeVane gets a refund from property tax or sewer, they are separate appeals. It must be fact based – based upon the layout of the building. He thinks that the CEO has it right; it continues to be a two-family.
Acting Chair MacLean asked if anyone from the public wishes to address the Board.
Edward Potter, 17 Heselton Street, knows Harvey and Lynn. He said their intent is to turn the structure into a one-family home, not here to get the circuit breaker refund. He said all of the bedrooms are on the second floor. The dining room is on the first floor. He has known many homes where people put in a sink upstairs. The house was originally built as a single family home with two kitchens. The DeVanes are trying to be an asset to the neighborhood, no one else is living in that house. There are not two apartments and he feels the DeVanes have been wronged.
Phil Barter, 223 Brunswick Avenue, said he bought a three-family and has opened up between two of the units. He was not asked to remove any kitchens. If you want to rent the other unit out at a later date, it boils down to use, not capacity.
Harvey DeVane said the Ordinance doesn’t say how many rooms or what they should be. When he renovated, he was going to put in two sinks and two dishwashers but the plumbing was too expensive and he didn’t and he told the CEO that he didn’t. There has been no door to the back yard since the barn burned. Inside it is the same as before, two kitchens, two bathrooms. The prior owners used it as a two family. I can show you the house where the sink and the butler sink is. It is most disturbing, he should have been told when he applied if he couldn’t change it.
Erik Stumpfel said the Ordinance talks about two-family converted or expanded and denotes physical changes to structure, not what the use is. If you knock down walls and merge walls it is the same as expansion. Mr. DeVane acknowledges that his house meets all of the requirements as a two-family dwelling.
Acting Chair MacLean asked the Board if they had any questions.
Kendall Holmes asked if Harvey had done any work on the second floor kitchen. Harvey said 20 years ago. Kendall asked if at some point in the history of the house was anything done to make it a two-family? Harvey said no, it is the same configuration – nothing done structurally. Kendall asked how the tenant would enter the house. Harvey said either through the front door or a side door. Kendall asked the City if the current owner or future owner wanted to use it as a two-family dwelling, there wouldn’t be any permits required? Erik Stumpfel said that is right, as long as the use is allowed in that district.
Harlan Brown asked if some of the work on the house had not been completed. Erik Stumpfel said some of the intended removals were not done. Harvey said some of the intended additions were not done.
Andrew MacLean said he would like to see a floor plan for the first and second floors with each room identified, the access and egress and how one might access various rooms and the difference from the prior setup.
7:20 PM Break to allow Mr. DeVane time to draw floor plans.
7:42 PM Meeting reconvened.
Acting Chair MacLean asked Mr. DeVane to explain the drawings to the Board. Harvey identified the various rooms on each floor and access. He said you can go to all areas of the house, including upstairs through the hall. There is no separation.
Kendall asked Harvey where he lived when it was rented out. Harvey said he lived upstairs and the owner used the first floor until two years ago. Andrew asked about the door at the back of the kitchen. Harvey said it used to be the door to the back yard and barn. Andrew asked if Harvey had altered any inside doors. Harvey said no, it’s the same as when built. Andrew asked if all of the internal doors lock. Harvey said yes.
Acting Chair MacLean asked if the City had any questions or comments about the drawings. Erik Stumpfel said no.
Diane Potter, friend of the Barters and DeVanes, and has been in their homes. They are older homes. Harvey does things meticulously. She knew the DeVanes when they lived upstairs and one lady lived downstairs. The Barters went from a 4 family to a 3 family and did structural work to make it a 3 family. Harvey didn’t have to change it a bit. It is a nice Victorian home.
Phil Barter asked if it is determined to be a 1-family and is listed as a 1-family, if Harvey or a subsequent owner wishes to use it as a two family, would they have to get a permit and make structural changes to meet fire code? He doesn’t see that it is a two family because of the kitchens. You can have any rooms used for anything. Logically it is laid out as a single family home and has been used that way for two years.
Harvey said the house doesn’t meet code for a two-family as it is now. Had he been told when he applied that he couldn’t do it and why, but the permit came back with no comments. If he had known, he might have done differently. He also feels the City has been derelict. The Ordinance indicates that you need 4 votes for a decision and has an obligation to fill the 7 seats on the Board of Appeals.
Erik Stumpfel said the statements made tonight concerning the conversion back to a single family home indicate no evidence to say this structure couldn’t be used as a two-family. The drawing shows two kitchens, two baths, and two separate entrances. Mr. DeVane did not meet the burden of proof as a 1-family.
8:07 PM close public hearing
After a long discussion of the evidence presented, a vote was taken.
Andrew MacLean asked that those of us, who believe that the evidence presented tonight indicates that the Applicant’s home is a single dwelling unit, please raise your hand.
Vote: 4 in favor. 0 opposed. It is a unanimous vote for the Applicant.
Acting Chair MacLean asked each member to give their conclusions.
Kendall Holmes – As I mentioned a couple minutes ago, it seems to me that this wound up in our lap with the City essentially saying that we have no convenient way to decide whether this is a two family house or one family house as evidenced by this thing about take out the kitchen sink upstairs and then it would be a one family house. That continues to seem silly to me. So I’ve got to look at it from the point of view of if an applicant showed up with this house and nobody knew whether it was a single family house or a two family house, the history of the place had been destroyed and a code enforcement officer was looking at it, the code enforcement officer, in my opinion, would look at it and say this is a single family house that could be easily converted into a two family house but the work
that you are doing in this house Mr. & Mrs. DeVane, that’s not the work that would need to be done to convert it into a two family house. It would need to have some fire safety and access issues addressed for it to be considered a rental or a two family house. You’re not doing that. I’m sorry; it’s a single family house. That’s the only way I can look at it.
Judy Skehan – I agree that two kitchen sinks are silly that makes it a two family dwelling. You should be able to have as many kitchens as you want. But I’m sorry; my vote is from the very first paper that the City gave him with Hinderliter’s signature on it. I mean how else would a person do it if you can’t depend on that. And there was plenty of time to tell him – there’s been plenty of time to reverse it, but two sinks – sorry.
Harlan Brown – Well, like I said before, I look at the application and they put on there that they want to renovate and I guess they didn’t complete the door they wanted installed, but the bottom line is it says returning to original one family and it was approved and the Code Enforcement Officer is the one that is going to have the authority to go with that, whether it’s a one family or two family. And another thing is, like Judy mentioned, that the way it is set up there, no, you meant Andy. You mentioned how it’s a fire hazard but that isn’t really in the requirements for a two family, but it’s not safe for a two family for the fire hazard thing too. But the bottom line is the application.
Andrew MacLean - As I have suggested, I place little, if any, weight on the decision made below. I don’t believe I have the authority to place any weight on either the DeVane’s actual current use of the property or intent. But I have listened to the testimony. I have reviewed this floor plan for the two floors and I see internal doors that would suggest to me a one family usage, a one family flow of traffic through the house. In order to be persuaded that this was a two family home, I would need to see structural changes made that impeded the access between the first and second floors so that they appeared obvious to the reasonable citizen of Gardiner that they were looking at a two dwelling unit house. That
could be done, as I see it, in a number of ways. But I don’t see that at the moment.
Kendall asked what the ramifications are. Andrew said that is between the DeVanes and the City.
5.) Adjourn
Judy Skehan moved to adjourn. Kendall Holmes seconded the motion.
Vote: 4 in favor. 0 opposed. Motion passed.
Meeting adjourned at 8:59 PM
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