1.      Variance                                   Erik and Meg Perry
                                                  12 Jusam Way
                                                  Tax Assessor Map U09, Lot 7
                                                  Rural Residential 1 district

Ms. McPheters presented background information as follows: Erik and Meg Perry request a variance of nine (9) feet from the fifty (50) foot front setback requirement for an addition to a single family dwelling at 12 Jusam Way on Map U09 Lot 7 in the Rural Residential 1 District.

This amended application was tabled from the August Board meeting.  The applicants are now proposing a two-story addition to the house.  As a matter of housekeeping, this item was inadvertently advertised with an incorrect identifying map as U07 not U09.

A variance of the side, rear and combined side setback requirements was granted on September 14, 1989 for the existing garage.

The variance request must comply with the following practical difficulty definition found in Section 104.97.

Mr. Perry, applicant stated they had re-designed the addition to include the existing garage for living and storage area.  This allowed them to reduce the request for the variance.

Mr. Manahan stated he appreciated the revisions, and asked if they would be using living area above the garage and the area next to the house.

Mr. Perry stated yes.  The area between the house would be 15' x 30 and the second floor of the garage.  The drawings are rough, but they will tie the two together maintaining the farmer"s porch.

Mr. Kendall thanked the applicant for the changes and stated they had done a good job.

The Board reviewed the "Practical Difficulty standards with the following findings and conclusions:

Pursuant to 30-A M.R.S.A. §4353(4-C), the Board of Adjustment and Appeals may grant a variance only when strict application of the ordinance to the Applicant and the applicants property would cause a practical difficulty and when the following conditions exist.  Practical difficulty shall mean that the strict application of the ordinance to the property precludes the ability of the petitioner to pursue a use permitted in the zoning district in which the property is located and results in significant economic injury to the petitioner.  The applicant must document how significant economic injury would occur.
The current house on the lot is significantly smaller than houses on neighboring lots, and this causes the value of the applicants property to be significantly less than that of their neighbors.  In addition, the applicant stated that his current employment situation relies upon the fact that he can perform some functions at home.  The house has only one bedroom and they need to expand to allow space for the applicant to continue to work from home.
The Board found this requirement to be satisfied.

A.      The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
The property is a very small odd shaped lot.  The entire lot is non-conforming and does not meet setback requirements.  The addition cannot be placed on the back of the house due to the location of the septic system.
The Board found this requirement to be satisfied.

B.      The granting of a variance will not produce an undesirable change in the character of the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting properties;
The addition will enhance the property, and make it similar in quality to houses in the neighborhood.
The Board found this requirement to be satisfied.

C.      The practical difficulty is not the result of action taken by the applicant or a prior owner.
The small irregular lot does not have a building envelope that would meet todays setback requirements.
The Board found this requirement to be satisfied.

D.      No other feasible alternative to a variance is available to the petitioner;
Due to the small irregular non-conforming lot and the location of the existing septic system there is no feasible alternative.
The Board found this requirement to be satisfied.

E.      The granting of a variance will not unreasonably or adversely affect the natural environment; and
The granting of the variance will not adversely affect the natural environment.
The Board found this requirement to be satisfied.

F.      The property is not located in whole or in part within the shoreland areas as described in Title 38, Section 435.
The property is not located in the shoreland zone.
The Board found this provision inapplicable.

Mr. Wyman asked for testimony from the public in support of the application.  

Ms. Kate Lemus, of Newcastle stated she was a friend of Meg Perrys and thought they had done a good job to bring the design into compliance with the requests of the last meeting.  She was in favor of the variance.

He asked for testimony from the public in opposition, neutral, or informational.  There was none.  The public portion of the meeting was closed.

Mr. Manahan moved to grant a variance of nine (9) feet from the fifty (50) foot front setback requirement for an addition to a single-family dwelling at 12 Jusam Way, Tax Assessor Map U09, Lot 7 in the Rural Residential 1 district.

Mr. Kendall seconded.                               VOTE:  Unanimous

2.      Special Exception                           Karen Olson & Stephen Hull
                                                  42 Flintlock Drive
                                                  Assessor Map R04, Lot 16B
                                                  Rural Residential 2 district   

Ms. McPheters presented background information as follows: Karen Olson and Stephen Hull request a special exception to operate a psychiatry medical practice home occupation at 42 Flintlock Drive on Map R04 Lot 16B in the Rural Residential 2 (RR2) District.

The applicants are proposing to relocate Dr. Olsons solo practice to their new home.  The Board approved the current home occupation on November 18, 1999.  The home occupation would be open Monday through Friday from 8:00 a.m. to 6:00 p.m.  The house is connected to the septic system designed for a three- (3) bedroom home.  The applicants are requesting a sign to identify the office.  The applicants should be advised that all development including parking must not invade the limit of construction and disturbance (LCD) as shown on the approved subdivision plan.

The Board will also need to determine that the use will comply with the Home Occupations regulation as stated in Section 414 and Sections 603.2.3 and 603.2.7 of the Cumberland Zoning Ordinance:

Dr. Karen Olson, applicant stated she has a solo part-time practice and sees one patient at a time.  She is a child and adolescent psychiatrist.  If a patient were waiting there would be a maximum of two cars at one time.  She stated the drawing of the house layout was not correct.  There would be a separate entry way for the waiting room and office.  The remainder of the floor plan would remain the same.  

Mr. Wyman stated the application had been previously approved for their previous house at 92 Foreside Road address, and had anything changed?

Dr. Olson stated yes, she would no longer have a part-time employee, her bookkeeper is a self employed independent contractor and works one or two times a week for a few hours.  Her practice is also smaller.

Mr. Wyman asked if there would be any music therapy.

Dr. Olson stated no, she sees quiet controlled patients whom she treats for situations such as depression and obsessive compulsive disorders.  If a patient were in crisis, she would refer them to the emergency room.

Mr. Manahan asked about the size and location of the proposed sign.

Dr. Olson stated the sign would be placed on the house indicating the office entrance.  The sign is 5 x 10.

Mr. Wyman asked for testimony from the public in support of the application.  There was none. He asked for testimony from the public in opposition, neutral, or informational.  There was none.  The public portion of the meeting was closed.

Mr. Turner asked for clarification on the bookkeeper.

Dr. Olson stated she is an independent contractor and works for several companies.

The Board reviewed the Home Office Standards in Section 414 with the following findings and conclusions:
414.1     Any home occupation such as arts and crafts work, dressmaking, tutoring, music teaching, and the use of a portion of a residential building as a bed & breakfast inn, day care home, or as the office of a physician, dentist, lawyer, engineer, architect, hairdresser, barber, real estate broker, insurance agent, accountant or similar uses may be approved as a special exception by the Board of Adjustment and Appeals if:  [Amended, effective 12/13/89]

.1      The occupation of an office will be managed by a member of the family residing within the dwelling unit.  Up to two employees who are not members of the family may be employed in a home occupation, and;
The owners, Karen L. Olson and Stephen Z. Hull and their children will occupy the home under construction at 42 Flintlock Drive, Cumberland.  There will be no employees beyond Dr. Olson.
The Board found this requirement to be satisfied.

.2      The occupation or office will be located wholly within the principal or accessory structures, and;
An office suite consisting of office, waiting room, entry hall and powder room is being incorporated within the main house under construction.  This office suite will have a separate entrance.
The Board found this requirement to be satisfied.

.3      Exterior displays, exterior storage of materials, and exterior indication of the home occupation will not be permitted except for signs as may be specifically provided for by the Board of Adjustment and Appeals and as may otherwise conform to the conditions of this Ordinance; and
The signage will be limited to 5 x 10 sign stating OFFICE hung at the entrance to the office.  The office will be an estimated 250 from the road and 250 from the nearest neighbor.
The Board found this requirement to be satisfied.

.4      Noise, vibration, smoke, dust, electrical disturbance, odors, heat, or glare will not be detectable beyond property limits, and;
By its nature the psychiatric practice within the planned office will not be detectable outside the office and beyond the property limits.
The Board found this requirement to be satisfied.

.5      Off-street parking spaces will be provided in an amount to be determined by the Board as necessary to avoid street congestion.
A parking pad accommodating three cars is planned with sidewalk connecting it to the office door.  This is consistent with the size of the parking pad that been more than sufficient at the current office where no more than two patients might be present.
The Board found this requirement to be satisfied.

Section 603.2.3.

.1      The proposed use will not create hazards to vehicular or pedestrian traffic on the roads and sidewalks serving the proposed use as determined by the size and condition of such roads and sidewalks, lighting, drainage, intensity of use by both pedestrians and vehicles and the visibility afforded to pedestrians and the operators of motor vehicles;
Flintlock Drive is a residential road that will serve nine homes when the development is complete.  There are no sidewalks.  The entry to the property will be served by a 12 foot-wide drive with no visual obstructions.  The use will not create hazards to vehicular or pedestrian traffic.
The Board found this requirement to be satisfied.


.2      The proposed use will not cause water pollution, sedimentation, erosion, contaminate any water supply nor reduce the capacity of the land to hold water so that a dangerous, aesthetically unpleasant, or unhealthy condition may result;
The psychiatric practice will not have any significant waste production or impact on the environment.  The septic system is adequately sized to accommodate the family and psychiatric practice.
The Board found this requirement to be satisfied.

.3      The proposed use will not create unhealthful conditions because of smoke, dust, or other airborne contaminants;
The psychiatric practice will not produce smoke, dust or airborne contaminants.
The Board found this requirement to be satisfied.

.4      The proposed use will be compatible with the uses that are adjacent to and neighboring the proposed location, as measured in terms of its physical size, intensity of use, visual impact, and proximity to other structures and the scale and bulk of any new structures for the proposed use shall be compatible with structures existing or permitted to be constructed on neighboring properties;
The psychiatric practice will be compatible with the uses that are adjacent to and neighboring properties. The practice will be entirely within the dwelling structure.
The Board found this requirement to be satisfied.

.5      The proposed use will not create nuisances to neighboring properties because of odors, fumes, glare, hours of operation, noise, vibration or fire hazard or restrict access of light and air to neighboring properties;
The hours of operation will be between 9 am and 6 p.m.  No odors, fumes, glare, noise, vibration or fire hazards are expected.
The Board found this requirement to be satisfied.

.6      The proposed location for the use has no peculiar physical characteristics due to its size, shape, topography, or soils which will create or aggravate adverse environmental impacts on surrounding properties;
The office and parking pad meet setback requirements and will have no environmental impact beyond those of any residence in the development.
The Board found this requirement to be satisfied.

.7      The proposed use has no unusual characteristics atypical of the generic use which proposed use will depreciate the economic value of surrounding properties;
The use will not depreciate the economic value of surrounding properties.
The Board found this requirement to be satisfied.

.8      If located in a shoreland zone, the proposed use (1) will not result in damage to spawning grounds, fish, aquatic life, bird and other wildlife habitat; (ii) will conserve shoreland vegetation; (iii) will conserve visual points of access to waters as viewed from public facilities; (iv) will conserve actual points of access to waters; (v) will conserve natural beauty and (vi) will avoid problems associated with flood plain development and use.
The property is not located in a shoreland.

The special exception request must comply with the additional following criteria found in Section 603.2.7.

.1      The volume of sound, measured by a sound level meter and frequency weighting network (manufactured according the standards prescribed by the American Standards Association), inherently and recurrently generated shall not exceed a maximum of 60 decibels at lot boundaries, excepting air raid sirens and similar warning devices;
The psychiatric practice will be within the dwelling and will not create any noise that would exceed a maximum of 60 decibels at lot boundaries.
The Board found this requirement to be satisfied.

.2      Vibration inherently and recurrently generated shall not exceed a peak particle velocity of .01 inches per second at lot boundaries;
The practice will be located within the dwelling and will not cause any vibration.
The Board found this requirement to be satisfied.

.3      No materials or wastes shall be deposited on any lot in such form or manner that they may be transferred beyond the lot boundaries by regularly recurring natural causes or forces, and all materials which cause fumes or dust, constitute a fire hazard, or are edible or otherwise attractive to rodents or insects if stored out-of-doors shall be in closed containers;
The psychiatric practice will not create waste that would be transferred beyond lot boundaries.
The Board found this requirement to be satisfied.

.4      The emission of noxious, odorous matter across lot boundaries in such quantities as to be offensive to persons of ordinary sensibilities is prohibited; and
There will be no emission of noxious, odorous matter across lot boundaries.
The Board found this requirement to be satisfied.

.5      No discharge into any private sewage disposal system, or stream or into the ground of any materials in such nature or at such temperature as to contaminate any water supply or otherwise cause the emission of dangerous or unhealthful elements is permitted, and no accumulation of solid waste conducive to the breeding of rodents or insects shall be allowed.
The house and office will have an adequate septic system and will not discharge any materials that would contaminate any water supply or otherwise cause the emission of dangerous or unhealthful elements.
The Board found this requirement to be satisfied.

Mr. Wyman read into the record the letter of opposition from Mr. & Mrs. Patriquinn, of 10 Flintlock Drive.  The letter voiced concern of having a home occupation in the neighborhood.
Mr. Wyman asked Dr. Olson is the medical practice would cause any concerns or infringe on the quality of the neighborhood.

Dr. Olson stated no, she would not have the practice in her home if patients were violent or a risk to her family.

Mr. Manahan moved to grant Karen Olson and Stephen Hull a special exception to operate a psychiatry medical practice home occupation as proposed at 42 Flintlock Drive, Tax Assessor Map R04, Lot 16B in the Rural Residential 2 district.

Mr. Kendall seconded.                               VOTE:  Unanimous

The Board discussed the hours of operation for the medical practice.  

Mr. Manahan moved to amend the motion to include office hours from 9:00 a.m. to 6:00 p.m. Monday, Tuesday and Thursday, Friday and from 9:00 a.m. to 7:00 p.m. on Wednesdays and to only see patients on an emergency basis on the weekend.

Mr. Kendall seconded.                               VOTE:  Unanimous

3.      Special Exception                           Fred Chase
                                                  31 Gray Road
                                                  Tax Assessor Map U16, Lot 7D
                                                  Local Business district

Ms. McPheters presented background information as follows: Fred Chase requests special exceptions to build a single-family dwelling and an accessory apartment at 31 Gray Road on Map U16 Lot 7D in the Local Business (LB) District.

The applicant is represented by Susan Chase and has provided a floor plan for the proposed dwelling and apartment.  The proposed three-bedroom dwelling is 1,456 square feet of living area and 40% of that area would be 582 square feet.  The calculated 520 square feet of the apartment appears to comply with the maximum 40% allowed by the ordinance.  The applicant has not provided a septic system design for the dwelling and apartment.  The Board has approved special exceptions for a proposed single family dwelling on this property on July 12, 2001, August 12, 1999 and December 10, 1998.  As a matter of housekeeping, the applicant has not provided a letter of authorization for Susan Chase.  The applicant provided a letter from Fred Chase authorizing Susan Chase to be his representative at the meeting.

The single family dwelling special exception request must comply with the criteria found in Section 603.2.3.and 603.2.7 and the accessory apartment request must comply with the criteria in Section 407.1, 603.2.3 and 603.2.7.

Ms. Chase, applicant stated they would like to build a two-story single-family residence with a one-story accessory apartment.

Mr. Wyman asked if the construction had been started.

Ms. Chase stated no.

Mr. Wyman asked if a septic design had been submitted.

Ms. Chase stated no, but Dick Sweet of Sweet Associates has a design on file for a four-bedroom home.

Ms. McPheters stated a building permit would not be issued without a septic permit.

Mr. Kendall asked about the sketch that was provided and stated the driveway must meet a fifteen-foot setback requirement.

Mr. Copp asked if the accessory apartment was to be the second floor of the house, and which direction the house would face.

Ms. Chase stated, no the accessory apartment will be the single-story dwelling.  The house will face Range Road.

The Board discussed the division of the lots as depicted on the tax map.

Mr. Manahan asked about the location of the two structures.

Ms. Chase stated there would be an attached mudroom type entry with a 12 separation.

Mr. Manahan stated the definition for accessory apartment states Any single-family dwelling or an existing accessory structure, which is either attached or detached, to the dwelling may be altered or expanded to include one apartment unit subject to the approval of the Board of Adjustment and Appeals.  
        .1 The unit to be added shall include no more than one bedroom and shall not exceed 40% of the total living area of the building.
Mr. Manahan asked if the square footage requirement would be met.

Ms. Chase stated the accessory apartment would not exceed 40% of the main structure and would meet the most restrictive requirement.

Mr. Manahan stated the definition also states an existing structure, the intent is alter or expand an existing house, this application is requesting a new structure on an empty lot.

The Board discussed the apparent intent of the Ordinance to allow modification of existing dwellings to allow accessory apartments.

Ms. McPheters stated based on previous discussions on the Board the staff is advising applicants to build the structure, and apply for accessory apartments when the structure is existing.

Mr. Wyman asked about the configuration of the lot split, with concern regarding creating a non-conforming lot.

Ms. Chase stated David Titcomb, of Titcomb Associates laid out the lot, and a corrective deed will be issued.

Mr. Kendall asked if there would be a merger of interior lot lines.

Ms. McPheters reviewed the lot adjustments.

Mr. Wyman asked if the lot re-configuration would go before the Planning Board for approval.

Ms. McPheters stated transfers to abutters are exempt.

Mr. Kendall asked if the lots would meet the lot size requirements.

Ms. McPheters stated that theoretically the requirements for two lots could be met.

Mr. Wyman asked for testimony from the public in support of the application. There were none. He asked for testimony from the public in opposition, neutral, or informational.  

Mr. Richard Jensen, of 283 Range Road stated he was an abutter and the original owner of the property.  He just built a duplex and was required to have two growth permits, pay two impact fees and have the additional 40,000 square foot lot requirement for a duplex.  He stated he was not opposed to the proposal, but felt it would be unfair to allow without meeting the requirements of a two-family dwelling.

The public portion of the meeting was closed.

Mr. Manahan asked how the property would be marketed, would it be a single-family dwelling with an in-law apartment.

Ms. Chase stated she was not sure, it is difficult to find a house in Cumberland under $250,000 and income from an accessory apartment may make a home affordable for a young couple, or it could be attractive to someone who wants an in-law apartment for parents.

Mr. Kendall asked if the property would be held for investment.

Ms. Chase stated there is that potential.  The property has been marketed for business and there has been no interest.

Mr. Manahan stated the Ordinance doesnt allow this approval, the ordinance clearly says, existing, with the purpose to be a mother-in-law apartment to help with expenses.  The Ordinance could allow someone to build a new structure and come to the Board in six months.

Mr. Wyman stated a duplex and accessory apartment are different.

Ms. McPheters stated an accessory apartment is limited in size and can be only a single-bedroom unit.

Mr. Turner sympathized with Mr. Manahan, and agreed the Ordinance is poorly drafted, on the one hand the Board bends over backwards to enforce the Ordinance with the tendency to be expansive in views rather than restrictive.

Mr. Martin stated reading statute and the intent of the Ordinance would prohibit granting the application.  He agreed it was difficult but granting a special exception would violate the spirit of the Ordinance and technically the words on paper.

Mr. Copp stated he could see both views, Mr. Manahan is correct the intent is not to build two apartments on a parcel with the intent to rent.  

Mr. Martin stated the building could be built and the applicant could apply when the building existed.

Mr. Kendall stated if the building were existing a special exception for an accessory apartment could be granted.

Ms. Chase stated that historically special exceptions for accessory apartments have been granted for new construction.  Her current residence has an accessory apartment, and Karen Andersen on Gray Road also has an accessory apartment.  An accessory apartment is different than a duplex; a duplex could have two or three bedrooms, which would attract children.  An accessory apartment allows only one bedroom for a family member or a rental with no impact on the school systems.  An accessory apartment may allow a family to live in Cumberland that couldnt otherwise afford to live in town, and there is a growing need for parents to live with children.

Mr. Martin understands the needs, but the Ordinance as designed is not to create apartments for rentals.

Mr. Turner agreed the Ordinance currently does not allow a granting of a special exception for an accessory apartment on a structure that is not existing.

Mr. Manahan moved to grant a special exception to build a single-family dwelling in the Local Business district and to deny the request for an accessory apartment at the same location.

Mr. Turner seconded.                                VOTE:  Unanimous

        The Board reviewed the Special Exception standards (to allow a single-family dwelling) in Sections 603.2.3 and 603.2.7 with the following findings and conclusions.

.1      The proposed use will not create hazards to vehicular or pedestrian traffic on the roads and sidewalks serving the proposed use as determined by the size and condition of such roads and sidewalks, lighting, drainage, intensity of use by both pedestrians and vehicles and the visibility afforded to pedestrians and the operators of motor vehicles;
The proposed single-family dwelling will not create hazards to vehicular or pedestrian traffic.
The Board found this requirement to be satisfied.

.2      The proposed use will not cause water pollution, sedimentation, erosion, contaminate any water supply nor reduce the capacity of the land to hold water so that a dangerous, aesthetically unpleasant, or unhealthy condition may result;
The proposed single-family dwelling will have an approved septic system that will not cause water pollution, sedimentation, and erosion or contaminate any water supply.
The Board found this requirement to be satisfied.

.3      The proposed use will not create unhealthful conditions because of smoke, dust, or other airborne contaminants;
The proposed single-family dwelling will be used for residential housing, and will not create any unhealthful conditions because of smoke, dust, or other airborne contaminants.
The Board found this requirement to be satisfied.
 
.4      The proposed use will be compatible with the uses that are adjacent to and neighboring the proposed location, as measured in terms of its physical size, intensity of use, visual impact, and proximity to other structures and the scale and bulk of any new structures for the proposed use shall be compatible with structures existing or permitted to be constructed on neighboring properties;
There are single-family dwellings on Gray Road, and Range Road.  The dwelling will be compatible with the uses that are adjacent The duplex will be compatible with the uses that are adjacent to and neighboring the proposed location.
 The Board found this requirement to be satisfied.

.5      The proposed use will not create nuisances to neighboring properties because of odors, fumes, glare, hours of operation, noise, vibration or fire hazard or restrict access of light and air to neighboring properties;
The single-family dwelling will be used for a dwelling and will not create nuisances to neighboring properties because of odors, fumes, glare, hours of operation, noise, vibration or fire hazard or restrict access of light and air to neighboring properties.
 The Board found this requirement to be satisfied.

.6      The proposed location for the use has no peculiar physical characteristics due to its size, shape, topography, or soils which will create or aggravate adverse environmental impacts on surrounding properties;
The single-family dwelling will meet State Plumbing Code and will not create or aggravate adverse environmental impacts on surrounding properties.
 The Board found this requirement to be satisfied.

.7      The proposed use has no unusual characteristics atypical of the generic use which proposed use will depreciate the economic value of surrounding properties;
The single-family dwelling will have no unusual characteristics that would depreciate the economic value of surrounding properties.
The Board found this requirement to be satisfied.

.8      If located in a shoreland zone, the proposed use (1) will not result in damage to spawning grounds, fish, aquatic life, bird and other wildlife habitat; (ii) will conserve shoreland vegetation; (iii) will conserve visual points of access to waters as viewed from public facilities; (iv) will conserve actual points of access to waters; (v) will conserve natural beauty and (vi) will avoid problems associated with flood plain development and use.  [Amended, effective 12/2/86]
The use will not result in any damage to the shoreland area.
The Board found this requirement to be satisfied.

In addition to the standards contained in Section 603.2.3, all special exceptions must conform with the performance standards set forth herein.  No use already established on the date of adoption of this ordinance shall be so altered or modified as to conflict with or, if already in conflict with, to further conflict with these performance standards.

.1      The volume of sound, measured by a sound level meter and frequency weighting network (manufactured according the standards prescribed by the American Standards Association), inherently and recurrently generated shall not exceed a maximum of 60 decibels at lot boundaries, excepting air raid sirens and similar warning devices;
The proposed single-family dwelling use will not create noise that would exceed a maximum of 60 decibels at lot boundaries.
The Board found this requirement to be satisfied.

.2      Vibration inherently and recurrently generated shall not exceed a peak particle velocity of .01 inches per second at lot boundaries;
The proposed use will not create vibration that would exceed a peak particle velocity of .01 inches per second at the lot boundaries.
The Board found this requirement to be satisfied.

.3      No materials or wastes shall be deposited on any lot in such form or manner that they may be transferred beyond the lot boundaries by regularly recurring natural causes or forces, and all materials which cause fumes or dust, constitute a fire hazard, or are edible or otherwise attractive to rodents or insects if stored out-of-doors shall be in closed containers;
The proposed single-family dwelling will not have any waste that would cause fumes, dust, and fire hazard or attract rodents or insects.  There will be no materials, other than normal household items stored outside.
The Board found this requirement to be satisfied.

.4      The emission of noxious, odorous matter across lot boundaries in such quantities as to be offensive to persons of ordinary sensibilities is prohibited; and
The single-family dwelling will not give emission of noxious, odorous matter.
The Board found this requirement to be satisfied.

.5      No discharge into any private sewage disposal system, or stream or into the ground of any materials in such nature or at such temperature as to contaminate any water supply or otherwise cause the emission of dangerous or unhealthful elements is permitted, and no accumulation of solid waste conducive to the breeding of rodents or insects shall be allowed.  [Amended, effective 12/2/86]
The proposed single-family dwelling will have an approved septic system that will not contaminate any water supply.
The Board found this requirement to be satisfied.



4.      Special Exception                           Denise Coyle
                                                  78 Idlewood Drive
                                                  Tax Assessor Map R05C, Lot 9
                                                  Rural Residential 2 district

Ms. McPheters presented background information as follows: Denise C. Coyle requests a special exception to operate a piano teaching home occupation at 78 Idlewood Drive on Map R05C Lot 9 in the Rural Residential 2 (RR2) District.
The applicant has not addressed the hours of operation, parking, signage or other criteria required for a special exception.

The Board will need to determine that the use will comply with the Home Occupations regulations in Section 414 and Special Exception Standards in Section 603.2.3 and 603.2.7 of the Cumberland Zoning Ordinance.

Ms. Coyle, applicant stated she would like to teach 3,4 and 5-year-olds piano.

Mr. Wyman asked the hours of operation.

Ms. Coyle stated Monday through Friday 9:00 - 5:00 p.m. and Wednesday and Friday from 9:00 a.m. to 12:00 p.m., next year depending on the Kindergarten schedule she may teach from 9:00 a.m. to 3:00 p.m.  She stated she will have no employees, she has a 30 x 34 parking area adjacent to the garage and will only have one student at a time.  Some interested student live in the neighborhood and would walk.

Mr. Kendall asked if there would be a sign.

Ms. Coyle stated no.

Mr. Wyman asked for testimony from the public in support of the application.

Ms. Ginny Kern, of 16 Idlewood Crossing stated it would create an opportunity for her children and was in favor of the valuable service.

Ms. Suzanne Entner, of 74 Idlewood Drive stated she is an abutter and is in favor of the request.  They are planning on having their daughter take piano lessons.

He asked for testimony from the public in opposition, neutral, or informational.  There was none.  The public portion of the meeting was closed.

Mr. Manahan moved to grant a special exception to Denise Coyle for a special exception to operate a piano teaching home occupation at 78 Idlewood Drive, Tax Assessor Map R05C, Lot 9 in the Rural Residential 2 district, and to find that the applicant met the requirements of Sections 603.2.3 and 603.2.7.

Mr. Turner seconded.                                VOTE:  Unanimous

5.      Variance                                   Clayton E. & Deborah Weed
                                                  11 Skillin Road
                                                  Tax Assessor Map R05, Lot 2B
                                                  Rural Residential 2 district

Ms. McPheters presented background information as follows: Clayton E. and Deborah D. Weed request a variance of twelve (12) feet from the fifteen (15) foot rear setback requirement for a shed at a single family dwelling at 11 Skillin Road on Map U19 Lot 23 in the Rural Residential 2 (RR2) District.

The applicants are requesting approval for an eight- (8) foot by twenty- (20) foot storage building on their property.  The building will not have a garage type door and is intended to house yard tools and equipment.

The variance request must comply with the practical difficulty definition in Section 104.97 of the Ordinance.

Mr. Weed, applicant stated he would like to build a shed to store yard equipment.  He cant meet setback requirements due to the wooded area, he has talked with the neighbor and they are in favor of the request.

Mr. Wyman asked about the foundation for the building.

Mr. Weed stated there would be 4 x 4 posts.

Ms. McPheters stated the size of the shed would need a foundation or sona tubes.

Mr. Manahan asked if there was a definition of shed in the Ordinance.

Ms. McPheters stated the Ordinance doesnt define a shed, however a shed needs to meet the requirement of 15 from the side and rear setback requirements.  Policy has been if a building is large enough to accommodate a vehicle with a garage door, it would be defined as a garage.

Mr. Kendall asked if he would suffer economic injury due to the cost of removing the trees and would the value of the property be impacted if the trees were removed.

Mr. Weed said yes.

Mr. Manahan stated he was struggling with the requirement (A) The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood.  The property appears to be larger than some others on Kathy Lane.

Mr. Wyman asked Mr. Weed what was unique about the property.

Mr. Weed stated the septic system is in the area that a shed could be placed without a variance.  The other alternative would be to remove approximately ten trees.  This would be very expensive; the trees enhance the property with a buffer.

Mr. Wyman asked if he had an estimate on the cost of removing trees.

Mr. Weed said no approximately $500.00 to $600.00 per tree.

Mr. Manahan asked the cost of the shed.

Mr. Weed stated $3,400.

Mr. Turner stated the size of a tree has influence on the price to remove it.  He just purchased a property with a huge pine tree that will cost $2,000 to have removed.

Mr. Wyman asked if it was a mature stand of trees.

Mr. Weed stated yes.

Mr. Turner asked the distance from the building to the closest neighbors.

Mr. Weed said twenty feet or better.

Ms. McPheters stated the aerial photo showed the location of the closest house on Kathy Lane.

The Board reviewed the aerial photos.

Mr. Wyman asked if the building would be delivered or built on site.

Mr. Weed stated the building would be built on site.

Ms. McPheters stated the shed is over 100 square feet and will need to have frost protection and cannot be built on blocks.

Mr. Kendall moved to grant a variance of twelve (12) feet from the fifteen (15) foot rear setback requirement for a shed at a single family dwelling at 11 Skillin Road, Tax Assessor Map U19, Lot 23 in the Rural Residential 2 district.

The Board reviewed the Practical Difficulty standards with the following findings and conclusions:

Pursuant to 30-A M.R.S.A. §4353(4-C), the Board of Adjustment and Appeals may grant a variance only when strict application of the ordinance to the Applicant and the applicants property would cause a practical difficulty and when the following conditions exist.  Practical difficulty shall mean that the strict application of the ordinance to the property precludes the ability of the petitioner to pursue a use permitted in the zoning district in which the property is located and results in significant economic injury to the petitioner.  The applicant must document how significant economic injury would occur.
The applicant would suffer significant economic injury if he had to incur the additional cost of removing trees.  The removal of trees to place the shed in an area that would meet setbacks would have an impact to the value of the property; it would decrease the buffer between adjoining property.
The Board found this requirement to be satisfied.

A.      The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
The stand of trees and placement of an existing septic system prevent the applicant from placing the shed in an alternate location.
The Board found this requirement to be satisfied.

B.      The granting of a variance will not produce an undesirable change in the character of the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting properties;
Properties in the neighborhood have sheds.  The placement of the shed will not produce an undesirable change in the character of the neighborhood.  The neighborhood will be enhanced with items stored in the shed and not outdoors.
The Board found this requirement to be satisfied.

C.      The practical difficulty is not the result of action taken by the applicant or a prior owner.
The applicant did not plant the trees.  
The Board found this requirement to be satisfied.

D.      No other feasible alternative to a variance is available to the petitioner;
Due to the location of the septic system and the expense of removing trees no other feasible alternative is available to the petitioner.
The Board found this requirement to be satisfied.

E.      The granting of a variance will not unreasonably or adversely affect the natural environment; and
The granting of the variance will allow the preservation of a stand of mature trees, which will prevent any adverse affects to the natural environment.
The Board found this requirement to be satisfied.

F.      The property is not located in whole or in part within the shoreland areas as described in Title 38, Section 435.
The property is not located in the shoreland zone.
The Board found this provision inapplicable.

Mr. Manahan seconded.                        VOTE:  Unanimous

6.      Special Exception                           Peter E. Higgins
                                                  125 Bruce Hill Road
                                                  Tax Assessor Map R05, Lot 42B
                                                  Rural Residential 2 district

Ms. McPheters presented background information as follows: Peter E. Higgins requests a special exception for an accessory apartment at 125 Bruce Hill Road on Map R05 Lot 42B in the Rural Residential 2 District.

The applicant has provided a floor plan for the proposed apartment.  The existing three-bedroom dwelling is 1,677 square feet of living area and 40% of that area would be 670 square feet.  The calculated 806 square feet of the apartment appears to exceed the maximum 40% allowed by the ordinance.  The applicant has not provided a septic system design for the apartment but has consulted with a soils engineer and will provide a full design for the building permit if the special exception is granted.  

The Board will need to determine that the use will comply with Sections 407, 603.2.3 and 603.2.7 of the Cumberland Zoning Ordinance.

Mr. Higgins stated he would like to add one bay to the existing attached two-car garage and build a second story above the garage.

Mr. Wyman asked if the house existed.

Mr. Higgins stated yes.

Mr. Wyman asked for testimony from the public in support of the application.  There was none.  He asked for testimony from the public in opposition, neutral, or informational.  There was none.  The public portion of the meeting was closed.

Mr. Kendall asked if the proposed accessory apartment met the 40% requirement of Section 407.1.1.

Mr. Higgins stated yes.

Ms. McPheters stated the assessment card for the first floor area living space did not include the porch and open deck for a total of 1,167 square feet of living area.

Mr. Kendall asked Mr. Higgins to describe the porch.

Mr. Higgins stated it is glass and used year round, the laundry room is in the porch.

Ms. McPheters stated the Board has added the existing and proposed living areas together.

Mr. Wyman asked if the basement was finished.

Mr. Higgins stated the basement was unfinished, and used for exercise equipment.

The Board discussed Section 407.1.1 (The unit to be added shall include no more than one bedroom and shall not exceed 40% of the total living area of the building) in this case that would be 680 square feet.

Mr. Wyman moved to table the request of Peter E. Higgins for a special exception for an accessory apartment at 125 Bruce Hill Road, Tax Assessor Map R08, Lot 66D in the Rural Residential 2 district.

Mr. Kendall seconded.                               VOTE:  Unanimous

7.      Variance                                   Derrill and Deborah Twomey
                                                  315 Blanchard Road
                                                  Tax Assessor Map R08, Lot 66D
                                                  Rural Residential 2 district

Ms. McPheters presented background information as follows: Derrill and Deborah Twomey request a variance of twenty-five (25) feet from the seventy-five (75) foot rear setback requirement to build a barn at 315 Blanchard Road on Map R08 Lot 66D in the Rural Residential 2 District.

The applicants are requesting approval for a proposed 22 by 34 two-story horse barn.  The Board may wish to address the location of the existing septic system and restrict the placement of the paddock area over the leach field.

The variance request must comply with practical difficulty definition in Section 104.97 of the Zoning Ordinance.

Mr. Twomey, applicant stated they have two horses and would like to build a 22 x 34 barn.  They purchased the property in 1988 and had to replace the leachfield in the front yard.  With the first rain the leachfield failed and flooded their basement.  The leachfield has been re-located to the back of the property with two pumping stations and cannot be moved.  The barn cannot be located in the front of the property it would require several variances.  There are rows of trees on either side of the property and the barn will not be visible.  The barn will house two horses and the upper level will be used for hay storage.  The horses were boarded in New Gloucester, due to a decrease in income they cannot afford to keep the horses in New Gloucester.  They have nine children of which seven have special needs.  One of the horses is a therapeutic horse.

Mr. Wyman asked for testimony from the public in support of the application.

Mr. Gary Sanborn, the applicants builder stated the barn would be a timber frame, post and beam structure.  The barn will be an asset to the neighborhood.

Mr. Wyman asked if the proposed location was the best spot on the lot.

Mr. Sanborn stated yes, it is away from the septic system.

Mr. Martin asked if there was a house near the barn, would the neighbors be able to see the barn.

Mr. Twomey stated he had talked with the neighbors and they had no concerns.  There are rows of trees buffering the barn.

Mr. Martin asked about the location of the septic.

Ms. McPheters stated the horse paddock area cannot be on the leachfield, it could create potential for damage and potential failure to the system.

Mr. Wyman asked if that was State Plumbing Code.

Ms. McPheters stated yes.

The Board reviewed the Practical Difficulty standards with the following findings and conclusions:

Pursuant to 30-A M.R.S.A. §4353(4-C), the Board of Adjustment and Appeals may grant a variance only when strict application of the ordinance to the Applicant and the applicants property would cause a practical difficulty and when the following conditions exist.  Practical difficulty shall mean that the strict application of the ordinance to the property precludes the ability of the petitioner to pursue a use permitted in the zoning district in which the property is located and results in significant economic injury to the petitioner.  The applicant must document how significant economic injury would occur.
The applicant has nine children of which seven have special needs. The barn is needed to house a therapeutic horse.  The horses were boarded in New Gloucester, but due to illness and a decrease in income the applicant cannot afford to board the horses and needs to build a barn at 315 Blanchard Road. It would cost a significant amount of money to continue to board the horses in New Gloucester.
The Board found this requirement to be satisfied.

A.      The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
The septic system was re-located in 1988 to the back of the property.  The system has two-pumping stations and cant be re-located. Also, the slope and shape of the property is unique.  
The Board found this requirement to be satisfied.

B.      The granting of a variance will not produce an undesirable change in the character of the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting properties;
The barn will be post and beam construction.  It will be attractive and not produce an undesirable change in the character of the neighborhood.
The Board found this requirement to be satisfied.

C.      The practical difficulty is not the result of action taken by the applicant or a prior owner.
The applicant did not cause the slope and shape of the property, and the placement of the septic system resulted from the soil conditions on the property.  The practical difficulty is not the result of the applicant or prior owner.
The Board found this requirement to be satisfied.

D.      No other feasible alternative to a vari