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Board of Appeals Minutes 2007-01-23
6 Church Street, Gardiner, Maine 04345
{00030026-0000-0000-C000-000000000046}4152010_20814_0.png       CITY OF GARDINER

January 23, 2007

Present:                Michael Eldridge, Chair    Charlene Kinnelly    Kendall Holmes  
        John Burgess                Harlan Brown                Daniel Bates

Also present:   Dorothy Morang, Recording Secretary
David Cichowski, Code Enforcement Officer (CEO)
                        Prince E. Stevens               Leon Hickey             Anthony Cartonio
                        Pamela Cartonio         Andrew B. MacLean       Don Mansir
1.)     Chair, Mike Eldridge called the meeting to order at 6:02 PM followed by the Pledge of Allegiance.  

2.)     Roll call was taken.

Chair Eldridge explained the role of the Board as representing the people of Gardiner and not the CEO, the Applicant or the City.  The Board reviews each application as it relates to the merits of the laws and ordinances and makes a decision and each member gives their rational for their vote.

3.)     Kendall Holmes moved that the September 26, 2006 minutes be accepted.  Harlan Brown seconded the motion.
        Vote: 3 in favor. 0 opposed. 2 abstained (Daniel Bates, Charlene Kinnelly new members tonight).  Motion passed.


        The first Applicant on the Agenda, Donald Mansir, had not arrived, so Chair Eldridge introduced the second Application.  

Dimensional Variance
4.)     Anthony & Pamela Cartonio, Applicants, request a ten foot (10’) variance from a thirty foot (30’) (corner) side/rear setback requirement to create two lots with a house on each.  The property, located at 30 Moss Dr, City Tax Map 7, Lot 1, is in the Rural (R) Zoning District.

       Chair Eldridge introduced the Variance Appeal from Anthony & Pamela Cartonio and asked the Board members if they felt the application was complete and the Applicant had standing.  Board members said yes.  Chair Eldridge asked Board members if there was any conflict of interest with respect to this Application.  They said no.  He asked Dorothy if the application was submitted on time and all notifications were made on time.  She said yes.

        Anthony Cartonio explained that he lives at 30 Moss Drive.  He purchased the property in 2002.  At that time, it was an unfinished ranch and an unfinished garage.  He got the permits to finish the home and to turn the building that was going to be an auto workshop/garage into a duplex.  He has received occupancy permits for both of these buildings. At the time the buildings were constructed and completed, the side and rear setback requirements were 25’.  The Ordinance changed the next year to 30’. He lost 10’ on the back corner.  He would like a variance to allow him to separate the two buildings into two properties.  There is no way to move either of the two buildings now to attain the required setback.

        David said the only other choice would be to put the line in the middle and ask for a variance for both.  Chair Eldridge asked David and Dorothy if Mr. Cartonio’s description of events was chronologically correct.  They said yes.

        Mr. Cartonio explained that, financially, the house is too big and he is looking at building a smaller house on his property.  He is forced into a subdivision to do this. He needs the variance to split the lot to sell the house.  David said all the other sides meet the setbacks.

        6:20 PM Meeting opened for Public Hearing.  No comments.

        Chair Eldridge asked Dorothy if she had received any letters or telephone calls from abutters concerning this Application.  She said no.  David Cichowski said he had heard from one abutter who lived out of state who was concerned that the reduced setback would be on the property line and near his lot.  David explained that the variance was for the setback between the two houses and also sent him a diagram of the lot with the two houses, showing the variance requested.  David has not heard back from the abutter.

        6:22 PM Closed Public Hearing.

        Chair Eldridge read the Applicant’s response to the 6 Criteria.

Daniel Bates said that going through these criteria, A. One could hardly imagine a more unique circumstance.  It seems like the setbacks were legal before.  It was an imaginary line that would have had 25’ on each side and met the requirements of the Ordinance as it then stood.

B, E & F – they’re not doing any building, so it doesn’t produce any undesirable change or adversely impact the environment and it is not in the Shoreland.

C. & D- Practical Difficulty  - isn’t the result of any action of the Applicant, but because of the change in the Ordinance and no other feasible alternative - it seems to him that it would cost tens of thousands of dollars to lop off a corner of the house and it’s been there for quite sometime.  The argument to him is in favor of granting the variance.

Charlene Kinnelly said she agrees with Dan and asks if there has been a prior definition for feasible alternative.  Chair Eldridge asked the CEO if there was a definition.  He said he doubted it.  Ken said he doesn’t think the Ordinance has a definition saying such as and giving examples. Dan said he is guessing that by the nature of the term, it is a case by case situation and you could have a million things that meet the feasible alternative.  He doesn’t recall reading a definition in the Ordinance.  He said it is a matter of logic applied to the fact.

Harlan Brown asked the CEO if E & F met the requirements of the Ordinance.  David said yes and if there was any impact to the environment by the cutting of trees and building, it was done long ago and not by the Applicants.  Nothing has changed except an imaginary line that was there and they want to get a variance and move the line to be able to sell the buildings separately.

Kendall Holmes said that sometime in the past a building permit was issued for the duplex and what is being suggesting is pretty reasonable for what they want to do, but he can’t understand how a previous CEO could have given them a building permit on this.  David said that you could build two houses on the property with no setback requirement.  Kendall said the practical solution makes sense.

Daniel Bates moved that the Board permit the Variance based upon the criterion listed before and the Ordinance, Section 2. G. Charlene Kinnelly seconded the motion.

6:33 PM John Burgess arrived.

Kendall asked if it is outside of the Board’s authority to say how they will divide the line. Mr. Cartonio said that it was done this way so that one of the lots is conforming.

Vote: 6 in favor. 0 opposed. Motion passed.

Mayor MacLean asked to address the Board.  He thanked the current members of the Board for their willingness to continue to serve the City and to welcome and thank the two new members, Mr. Bates & Ms. Kinnelly.  We do have one more position and two alternates that he will fill as soon as possible.  He publicly apologized to Mr. Mansir, the second Applicant, who has been put off for two meetings and several months because of the Board’s inability to achieve a quorum.  Because of the number of members, it was necessary to have all of the members present to have a quorum. He explained that at the last meeting, he expected to be there, but at the last minute, could not make it because he was in the hospital in Boston with his four year old son for a matter that took a lot longer than he had expected and for that he personally apologized because it was a last minute issue.  He said it is very important to have volunteers like the Board members to serve the City and it is important that we have full functioning Boards in order to provide the kind of services to the citizens that we all would expect and that would be his expectation and his commitment going forward.  He thanked them for their time.  Chair Eldridge said that he appreciated Mayor MacLean coming to the meeting and for his comments.

5.)     Donald Mansir, Applicant, requests a variance of forty-four feet (44’) from a one hundred foot (100’) minimum road (center line) setback requirement to construct a 24’x 28’ two-car garage.  The property, located at 145 Libby Hill Rd., City Tax Map 7 Lot 24B, is in the Rural (R) Zoning District.

        Chair Eldridge introduced the next Application.  He asked members if they felt the Application was complete.  Board members said yes.  Chair Eldridge asked Board members if anyone had any problems reviewing this Application.  They said no. He said that Mr. Mansir provided a copy of the deed and therefore had standing.

        Donald Mansir thanked everyone for being here.  He said his septic tank and drainage field were on the front lawn.  His back lawn drops off so he has brought in enough fill to put on an addition on the back of the mobile home.  His current garage is ten feet from the road.  He would like to build a new, larger garage 32 feet from the road.  He said it would look better and there is no way to put it back 100 feet.  It would take tons of fill to do that.

        Chair Eldridge said he looked at the property and noticed fill had been brought in on the east side of the property and asked where the septic was.  Mr. Mansir said it’s towards the power lines, towards the Weeks Road.

        Kendall Holmes asked where the old garage is.  Mr. Mansir said 10’ from the road.  Kendall asked what happens to the old garage.  Mr. Mansir said he plans to demolish it.

Chair Eldridge asked why Mr. Mansir doesn’t continue to fill in on the side and put the garage over there.  Mr. Mansir said he plans to put on an addition to his mobile home to make his living area bigger.  It would also cost a lot more money and he would have to make another roadway and take down some big trees.

Harlan Brown asked if the new garage would be closer to the stand of alders on the property.  Mr. Mansir said yes.

Daniel Bates noted that in Criteria B, the Applicant answered no and asked Mr. Mansir if he meant yes.  He said he did.  It appears that he did the same in C & D also.  Mr. Bates commented that the questions were written as double negatives and very confusing for someone trying to answer the questions.

Daniel Bates asked if along Libby Hill Road, other structures were as close or closer to the road.  Mr. Mansir said yes as did David Cichowski, the CEO.

John Burgess apologized for being late and said he drove out to the property and got a sense that a lot of structures were closer to the road than the requirements.  He also agrees that the Board needs to re-write the questions.  John said he thinks the Applicant is trying to make things better by putting it back further from the road.

Harlan Brown said he was all set – no further comments.

Charlene Kinnelly asked what the setback requirement was.  Chair Eldridge said 100’ from the center of the road or 75’ from the edge of the property.

Chair Eldridge said that they need to determine practical difficulty and asked the Applicant why he couldn’t put the garage out on the side.  Mr. Mansir said it is a wetland, he doesn’t want traffic coming up in his yard and the fill would be too costly.

Daniel Bates asked what the total area was that the Applicant owned.  Mr. Mansir said 1 ¾ acres and 200’ frontage.  It is a wedge shaped piece of land. At Mr. Bates request, Mr. Mansir explained where the septic tank and field, the house and wetlands are.  Mr. Mansir said he also had to put a drain around the mobile home to put off water.

Chair Eldridge asked the Applicant if the Board approved this, the new garage would be closer to the house.  Mr. Mansir said yes.

Kendall Holmes asked if the Board could add a condition that the old garage would be removed.  Mr. Mansir assured the Board that he will take the old garage down.

Chair Eldridge asked Dorothy and David if they had heard from any of the abutters.  They said no.  Chair Eldridge said that there was no one in the audience, so we didn’t need to open the meeting up to a public hearing.

John Burgess asked which side the garage door would be on. Mr. Mansir said facing up Libby Hill Road, the same way the house is now.

John Burgess moved to approve with the condition that the original garage be removed within 30 days of the completion of the new garage.  Harlan Brown seconded the motion.

Daniel Bates said that one of the criteria for him was - he thought when he read the Application, it was pretty close, so if there had been someone here objecting, then he would be really scrutinizing this hard because as he drove along Libby Hill Road, he didn’t see anything as close as the wooden garage.  It’s important to him that the neighbors didn’t object – it’s an important criteria and why you have a public hearing.  He thinks the motion is a good one with that in mind and with the destruction and removal of the old garage.

No further comments.

Vote: 6 in favor. 0 opposed. Motion passed.

Chair Eldridge apologized to Mr. Mansir for the wait.

Mr. Mansir thanked the Board again.


John Burgess moved to adjourn the meeting.  Kendall Holmes seconded the motion. Chair Eldridge closed the meeting at 7:04 PM

Dorothy brought up the application forms.  She noted that they were using old forms from the previous Ordinance and that she had made a few changes to accurately reflect the Ordinance references and the timeframes for submission, but felt that they needed to be reviewed and updated.  The Ordinance states that the applications will be on forms approved by the Board of Appeals.  After discussion, it was decided that Dorothy would send copies of the current forms to Board members and they will review them and make any necessary changes at the next regular meeting.

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