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Job & Lynn Sargent July 23, 2007

Board of Appeals hearing
Job & Lynn Sargent
July 23, 2007

       The meeting of the Board of Appeals was called to order at 6:30 p.m. by Chairman John Eaton. The purpose of the meeting was to examine an application for variance on the 100 foot vs. 150 foot footage code put in place in 2006. Members present were John Huffman, Larry Stretton, Merle Barker and Henry Grebe. Also present were Tim Fanning, Chairman of the Planning Board, and Al Holden, Code Enforcement Officer.

       Making their appeal for a variance were Job and Lynn Curran Sargent. Mr. and Mrs. Sargent owned the Marr Place on Mill Hill Road. In 2004 they had it surveyed in hopes of selling the house and surrounding land, while retaining four acres for a retirement home. Lot plans, along with a deed, were made up at that time for the four-acre piece in question. The deed, which included the 100 feet of frontage required at that time, was recorded in January of 2005. In March of 2006, while the house was still on the market, the ordinance addressing the required footage for frontage changed from 100 to 150 feet. The house did not sell until November 10, 2006.

       The Sargents argued that since they had formulated the lot plan and written and recorded a deed in compliance with the requirements of the time, they had acted in good faith. They were not aware the frontage requirements had changed until they had applied for a building permit to construct a barn on the site, planning also to build a house at
some time in the future.

       Board members and others present further questioned the Sargents and discussed how the situation fit the existing ordinance. Members asked if a right of way or additional land might be obtained from the new land owners. The Sargents replied that although they had discussed such a plan with the new owners, they had not received a definitive answer and would prefer to acquire a variance. When asked why they had restricted the frontage to 100 feet, the Sargents replied that the division was made when only 100 feet was required. They would be unable to add the 49.5 feet required because the land on the other side is owned by someone else, and if taken from the original property, it would land in the middle of the new owner’s driveway.

       Mrs. Sargent expressed the fear that if the variance was not granted, it would render the lot unusable independently and would greatly devalue the land. If it were to be purchased by an abutter, it would be at a greatly reduced price.

       Tim Fanning expressed concern that writing a deed did not made the deed legal, that it must be in another name. Mrs. Sargent explained that the four-acre piece of land in question was a split-off. The piece never changed until the house and surrounding land was sold in November of 2006.
       Tim Fanning stated that when the ordinance went through, the town sent notifications to all area Real Estate Brokers notifying them of the change. The Sargents had not been made aware of any change.

       Further discussion delved into the ordinances detailing front lots, back lots and their possible relevance to the situation. (Pages 4, 5 and 6 of the Land Use Planning Ordinance For the Rural Town of Waterford, Maine Effective July 1,1975, Amended March 4, 2006.) Mrs. Sargent commented that according to the existing ordinances, it appeared that with a back lot or a cul de sac, they could subdivide with only 50 feet of frontage. It didn't make sense to her to refuse construction of a single dwelling when the lot could be subdivided for three houses.

       John Eaton stated that he had gone to one of the committee members who had worked on the 150 foot ordinance and asked them what the committee had in mind when they extended the requirement to 150 feet. The answer was that they were trying to prevent “urban sprawl.” He felt that the committee should go ahead and grant the variance. He expressed the feeling that there would be other similar situations coming up (large pieces of land, but with less than 150 feet of frontage.)

       Al Holden replied that the lot must be created before the 150 foot ordinance to be legal, but that it was possible to combine two lots to form the larger piece of land.

       John Huffman added that the role of the committee was to enforce whatever had been passed, but that the idea of a large lot - four acres, 10 acres, 20 acres - not being able to be built on because it has too low frontage doesn't impact urban sprawl. He expressed the hope that the committee would go back and rewrite these provisions so that it could be voted on at the next town meeting so we “wouldn't end up with these ‘odd-ball’ situations. As it sits right now, there is no difference between a four- acre lot and a one-acre lot. It appears that there was no intent by the Sargents to do anything but to follow the rules or they wouldn't have made it 100 feet on the road when that was the rule, but the reasons we are given to grant a variance means basically we can't grant a variance if they split the lot after the date by their own action. I would have a tough time reconciling all this but they did record the change beforehand. If I were looking at it without any background, would I know that it didn't count as a lot? Do I think they did it for some other intent other than to do what the rules said? I don't think so. So technicality there is an issue here, but they did everything they should to make this a buildable lot." The four criteria for justification of the variance were also met.

       Chairman Eaton asked if any board member or anyone else present had questions or comments. In summary, the Sargents had acted in good faith in taking the proper steps for deeds and lot plans, the plan and the deed were legal before the 150 foot town ordinance was passed, and the 150 foot ordinance change had occurred after the house had gone on the market. The four criteria for justification for the variance had also been met.
      The comment was also made that it made more sense in terms of preventing urban sprawl to add one house instead of a four-house development.

      There being no further discussion, Chairman Eaton asked for a vote. The committee voted 5-0 in favor of granting the variance requested by the Sargents, who expressed their appreciation and relief that the matter was settled.

       Al Holden added that the variance must now be recorded at the registry of deeds. John Eaton suggested that the town make an ordinance change for similar lots. The meeting was adjourned at 7:15 p.m.

Respectfully submitted,
Mary DeLorenzo, acting secretary