Bangor Zoning Board grants parking variances for 1011 Union Street

[3:57] Rachel Thompson: Thanks, Grace. Good evening, everybody. It is 532. I apologize for starting a little bit late. I'm going to call tonight's meeting of the City of Bangor Board of Appeals to order, and we will get started. And the first item on the agenda is introductions. Brian Ray. Rob Ballingall. Ed Gould, I'm the board chair. [4:28] Robert Ballingall: Rachel Thompson, Don McCann. [4:32] David Szewczyk: David Sepchik, city solicitor. Grace Ennis, assistant city solicitor. [4:39] Rachel Thompson: Thank you, everybody. Item number two, actually what I would like to do, if we have the approval of the board, is I would like to add an item to the agenda, and let me give everybody a little background here. Jordan LaBeouf, who has been a member of the Board of Appeals for a number of years now, he is currently out of state, he's not here tonight, he's out of state for work purposes, and expects to be out of state for a few months. He is still a resident in the city of Bangor. He would still like to participate in the board of appeals meetings and will be available to, although he's not here tonight, will be available to participate remotely. The city has a, an ordinance, and if I misspeak, it, Dave or Grace, please help me out, but as I understand it's a policy, Ed, so it's a policy, thank you, city has a policy regarding remote participation that basically says that a board member can participate, excuse me, participate remotely on three occasions, but only three occasions, with the exception that if the board votes to allow continued remote participation, then that would be authorized. Did I get that right? It close enough. Yeah, close. So what I would like to present to the board for consideration is to authorize Jordan at future board meetings until he returns from his job assignment to participate remotely. So I guess the first thing they really have to do is to ask the board for a motion to amend the agenda to consider that item. So moved. Second. Moved in second. Any discussion or questions? Hearing none, all those in favor, it is a vote. Thank you, everybody. So next, let's have discussion and or questions about the issue. Does anybody have any questions or concerns? Since I'm the board chair, I don't want to make the motion. Would somebody, would like to make a motion regarding authorizing Jordan LaBouf to participate remotely until he returns to [7:13] Robert Ballingall: the city from his work assignment? So moved. Unless you would like me to say the motion myself. No. [7:20] Rachel Thompson: That's fine and a second, thank you. Moved to second, comments, questions, discussion. Hearing none, all those in favor? And that is the vote. Thank you everybody, I appreciate everybody's accommodation on that. So the next item on the agenda is training, that's [7:48] Lisa Goodwin: me. I left little packets for all of you, it's just a handout of what we train you guys on annually and I'll do a quick run through, but I think most of you have probably sat through one of these before. So to start off, I just wanted to quickly go over your decision making power. So the Board of Appeals is a public body with decision making power, and so you're required to make decisions according to established rules and procedure and not based on the class of an applicant. So this refers to due process and ensuring that you're making your decisions based on the packet in front of you and the information presented to you rather than the applicant's race, color, religion, sex, national origin, age, physical or mental disability, genetic information, gender identity, sexual orientation, socioeconomic status, cultural group, or political class. And there's a citation in there for you to the code of ordinances. Moving on to the Freedom of Access Act, so that's a two-prong statute. There's the public records statute and then the public meetings. So just to quickly cover the records prong, records of actions and deliberations of the city and its public bodies are open to public inspection. So it's safe to assume that your correspondence regarding the business of the Board of Appeals, notes taken during the meetings, and other documents related to the Board of Appeals are subject to public inspection. And we recommend that you create an email that you exclusively use for your Board of Appeals correspondence, so if something does come up then you can quickly just run through that email and forward us whatever correspondence there might be. I do have in here in your handout, you can just create a Gmail account or something like that, a free account, and then just let the city clerk's office know if you do that so that we can update your contact information with the city, and we may ask to see your communications at any point if we do get a FOA request. And then moving on to the public meetings prong, meetings of the Board of Appeals are advertised and open to the public. This is an example of one of those meetings. So you would open a public hearing for items before you. And just to quickly cover ex parte contacts, the handout kind of goes into it, but you don't want to have contact with the applicant or opponent regarding an application in front of the Board of Appeals. And then executive sessions, that would close the public meeting. That's done through a three-fifths vote of the Board of Appeals, and that's by statute, and you can only go into executive sessions for a limited number of things. One of those would be to consult your attorney based on the rights and duties of the board. And then moving on to the code of ethics, I kind of just tried to outline the important ones for this board. So confidential information, this information would be flagged as confidential. We won't just send you something and not tell you that it's confidential, but we'll let you know, and you can't disclose this information or use this information to advance your own interest or the interest of someone else. Your use of social media, it's your responsibility to ensure that there's no ambiguity that you're not speaking on behalf of the city and the code of ethics recommends the form of the disclosure statement on someone's social media page i personally have one just in my bio on my social media that just says like the thoughts and opinions shared on here are my own and they're not the city of bangor's gifts and favors members of the board may not accept gifts or favors from people or businesses that are interested in business and stealings of the city members are also not allowed to accept gifts or favors in exchange for voting a certain way on an item. This accepts, obviously immediate family can give you gifts, things like that. Representing third-party interests before the city, members may appear before city boards on behalf of their own personal interests but cannot appear before city boards to represent third-party interests, and this kind of goes into conflicts of interest and the use of titles and disclaimers and such. So members of public bodies may not participate in the deliberation or vote on any agenda item before their collective body in which they or their immediate family has a financial or special interest other than an interest held by the public generally. So I did include the definitions of financial and special interest because they're a little bit closely related. But if you have any questions about that, please let us know. If it is found that a member has a conflict by the board, that member should step down from the dais and either leave the room or sit out where the public sits. And then use of titles and disclaimers. This is very similar to social media. It's the board members' responsibility to ensure that there's no ambiguity that they are not speaking for the city. Disclaimers are required when there could be ambiguity regarding the capacity in which an elected or appointed official is communicating. And in your handout there are a couple of recommended disclosure statements if you are speaking before another board or something like that about your own personal interests, and then there's also a few other ones recommended in the ordinance. I know that was really fast. Does anyone have any questions for Grace? All right, if you think of anything please let us know and we will get back to you. All right, thank you Grace. [13:30] Rachel Thompson: And I just realized I probably should have done this earlier. We have two new board members. Welcome aboard. And one thing that I'm not sure about, though, is who are regular members and who are alternate members? Because we have to figure that out for voting tonight, I think. [13:51] David Szewczyk: Right. The two associate members are on the ends here. Member McCann and associate member Party. Party. And it actually says it on the front of the, oh, so we have one regular member missing tonight, so you'll want to, the chair would then appoint which associate member would be voting in that person's absence. Both associate members can participate in the discussion, right, absent [14:18] Rachel Thompson: a conflict. Given that Don has had some experience with us before, I'm going to appoint Don. No offense intended to you, Scott, we welcome you for future meetings, and I, you've appeared before us before, so I know that you understand the process and procedure, and I'm sure you'll fit right in. And thank you for your service. Next item on the agenda is the approval of minutes from the July 23rd Board of Appeals meeting, which is, has been included in your packet. Does anyone want to make a motion regarding Approval of the minutes. Motion to approve the minutes and a second. Moved in second. Any comments, questions, corrections for the minutes? Hearing none, all those in favor, it is a vote. Thanks very much. The next item on the agenda is a public hearing relating to 10 11 Union Street. The applicant is Nathan Woodard for consideration of a variance from the setback requirement of city ordinance section 165-73b and the buffer requirement of section 165-73d. So we'd be happy to hear from the applicant. I'm [15:47] Nate (Appellant): not really sure where to begin other than when I started this project. The first step was a pre-planning meeting with the city. At the time, I had a simple diagram drawn up by an engineer that was doing the project for Encompass Health, which is next door. At that time, there was quite a few people in the room. Code was there. I think Anjan was present and a few others. I was told I would have to do a zone change, which was no big deal. deal at that time I was told if you know they would be able to extend the one foot setback that's been existing there since the property you know basically was developed in 45 years ago went pretty smooth everybody said it should be a very simple project no big deal at that point I did not own the property yet I was still you know in the works of buying it so it kind of went from there to waiting to do the planning board meeting for the zone change which went through without an issue I became the owner of the property I think in late July shortly after the planning board meeting and basically since then I hired and you know an engineer from the site development which was Justine she kind of changed the plan around a little bit to maximize what it could grow for parking in the area because my parking lot's been congested for years now it's been a problem and basically since then it's been one thing after another that I was not told in the pre-planning meeting at first I think we were told it was wetlands shoreline zone we needed a 75 foot setback at the back of the lot the lot's only 100 by 100 so that makes it utterly useless which we weren't told that in the pre-planning after I think a week or so they finally realized they weren't reading the code correctly I guess and then the new thing was because we changed the zoning now we had to have a 20 foot buffer on the existing side where Encompass is building the road where my parking goes up through which of course we Weren't told about that either. Just it's been one thing after another. I've been told the lot is non-conforming all the way up until after the planning board meeting. Multiple emails that have attached show that, and then I've been told it's definitely not non-conforming. Everybody spoke erroneously. The town has no notes from the plea planning meeting, which my understanding is they are supposed to have notes. I have my notes from that meeting. It just it's been one hardship after another right now. This lot is of no value to me, and I got it under good faith of what the city told me, and it's been one thing after another other of just polar opposites does. [18:31] David Szewczyk: Anyone just ask for a point of order? Sure, there are two appeals, and I just want to make sure that the record is clear that this is this presentation is with respect to both appeals, and I wanted to make sure that the board understood that there are two separate appeals that are combined here tonight. It's up to you. [18:54] Nate (Appellant): So the first appeal is my existing parking. The big issue now is code enforcement is insisting that they had a meeting with me prior to the pre-planning meeting, which never happened. And supposedly in this meeting, they told me I would have to move my existing parking back four feet to comply with a five-foot setback. When the lot was developed in, I think, 78, somewhere in that range, it was originally with a one foot setback. It was approved. So code is now insisting they told me this, which they didn't, that would completely gut my existing parking. If you take four feet off that parking lot, no half-ton truck is going to fit in there safely. I mean, it's you wouldn't be able to park in front of the bay doors, which is virtually all the parking I have now. So the idea that I you know had a meeting with code and they said that is just not true. I don't know why I'm being told I have to remove parking that's been there for basically 45 years now. It's pretty wild to me that never would have happened if I wasn't trying to expand my parking. It's not like they came over with a tape measure one day and said oh you're four feet over the setback. I don't understand where that's coming from. I've asked the city is there any proof of a meeting, any correspondence with code, nothing. They have none. I have no emails. I have No phone call records, no tax, nothing, and they have nothing either. The second variance is for my expansion, expanded parking lot, which now would require a 20 foot setback, which again, without having a map here, but to come up to my parking lot and jump in 20 feet is going to be extremely awkward. I wouldn't gain really any parking at all back there. The way the lot's set up, it's only 100 by 100 is now. And that left side where the 20-foot setback would have to be is the side that you drive into. So it looks like in the beginning of this project with the pre-planning meeting, I was told they'd be able to grandfather the one-foot setback so it could extend. Otherwise, it's going to look pretty dumb to come in and basically go up the parking lot 80 feet and then jump in to an extended parking lot. It doesn't match. This parking lot is basically would exist between a brand new road that encompasses building and then a parking lot that's on the other side of me at the laundromat that's been there for as long as I have been thank [21:26] Rachel Thompson: you Mr Warden board members have any questions I [21:32] Robert Ballingall: have a question I have a few actually so is code enforcement's insistence on the five foot setback on the existing parking lot is that coming from the zoning change is that why they're now [21:43] Nate (Appellant): insisting that no the zone the zone change that I had to do was on the 100 by 100 lot behind my shop the existing lot that I've had forever that's shopping in person snps which it has [21:55] Robert Ballingall: been that hasn't changed at all so then the stuff about like grandfathering in the one foot setback or is your claim that the lot is the one foot separate requirements grandfathered in for both like the existing parking lot and the new expanded parking lot it's the existing has [22:16] Nate (Appellant): been one foot since you know 78 or so I was told at the pre-planning meeting that they would be able to grandfather that and extend it onto the new proposed law so that way it doesn't have to jump over but I was certainly never told I would need a 20-foot setback either but they said yeah extending that wouldn't be a problem so that was kind of the basis of the whole thing [22:41] Scott Pardy: Other questions? I do have a couple, if you don't mind. Sure. So I'm attempting to analyze the effects on your business from a material angle. Excuse me. Sorry. You need to turn your mic on. I believe it already was on. I thought you had to hold it. Excuse me. So I'm trying to understand the analysis here by means of a material perspective. You had mentioned earlier that the reduction of parking would lead to a significant loss as well as another detail that you briefly mentioned, but I don't think was contained in here. You had mentioned that there was going to be a significant reduction in egress for any. You said half ton trucks coming in to deliver various commodities on the existing parking in front of the shop. [23:34] Nate (Appellant): Off. Most of my parking is now in front of the bays, one through six. If you take four feet off of that, which is what code is now insisting I have to do, there'd be no space to safely pull in a truck if there's vehicles parked there. I mean, I virtually would basically have to lose all the parking in front of the bay doors. Small compact cars could fit, but that's a very minority part of the business compared to your average size SUV trucks,, you know, extra cab trucks, or dime a dozen in the state, obviously, we do a lot of work on those. Yes. So that would, it would virtually cut my parking that I already have in half at best. [24:11] Scott Pardy: And half. Okay. And has any inland marine organization that delivers any such products to your business? Have they effectively stated they do not feel comfortable in making said deliveries to you? From that point forward, if the setback were to be pushed to five foot mark, [24:28] Nate (Appellant): I have a lot of companies now that won't like semis won't back in it's an issue and not that i have a lot of them show to the shop most of them are just local parts store trucks stuff like that which is not a big deal but i do have dumpster company they would have a hard time turning around a couple other you know like safety clean larger box trucks tires sometimes come on larger box trucks losing four feet would make it pretty difficult understood thank you very much one Sorry, one other thing That was brought up, too, and I actually mentioned in the pre-planning meeting, my driveway, there's no exit onto the new road that's being built. And I kind of mentioned it during the pre-planning meeting because my concern back then when Encompass was building the road is if somebody is leaving my lot, turning left, and now there's a traffic light at what's about to be a four-way intersection, section. It could be a little bit of a safety issue if somebody else is also turning left at the same time. You know, it's already a bad spot anyway. There's quite a few accidents on that road. But it was basically nobody really seemed concerned about it, and Compass doesn't want access on their road, which I understand. My hope was the town would maybe push it because it could definitely be an issue. I would like to have a turnaround there. Then I could have maybe done on angle parking, but then I did some research. Angle parking, you actually, my code is longer than 90 degree parking. So I would actually lose space by doing an angle parking anyway. But I am, you know, there was a mention there later on in emails about going to angle parking, but I brought that up, you know, in the pre planning meeting, it's a non starter, I'd lose space plus, like I said, I can't have angle parking anyway, away because I have no access you know on an outward angle. Understood, thank you once again. [26:23] Robert Ballingall: Other questions? Yeah, I just wanted to clarify something you were saying. So just so I have a grasp, I think I know that where you're talking about, I live on that end of town, and so you're saying there's going to be a road going in at that light on down the side of the property, is that right? And you're saying you won't be able to get like another driveway off of that road. Okay, thank you. Okay, that's what I thought. I just want to clarify. Thanks. Other questions? [26:53] Rachel Thompson: Mr. Ward, I have a few. And I guess first question I have is there's a looks like there's a road in progress or in construction next to your property. Do you know what that road is going to service? I'm sorry. Oh okay, thanks. So it's a it's a commercial use, okay. I think most of the other questions I have are so that I can understand the differences between the two parcels and their historical use, and you know how that fits with what you're being told about what you can do with the these two parcels. So I want to start with some questions about the front parcel, which is the one that you've owned for some period of time, is that right? When did you acquire that first parcel? Okay. Okay. So Midas owns the property and you lease it from Midas, got it. And was it a pre-existing Midas, I don't know if it's a franchise or not, but Midas operation that you later acquired? Okay. And when you acquired the franchise, was that one foot setback already in place? Okay, sorry. [28:56] Nate (Appellant): Can you hit your mic again? All right, that the one foot setback is on the original plan that the city has from 78 or 79 when it was built originally as a four-bay shop. [29:05] Rachel Thompson: All right, and then, and then you acquired the franchise when, roughly '99 or 2000. Okay, all right, thank you. And so then you have, do you currently own that back parcel? I do, okay. If there were a five-foot setback, I'm asking you hypothetically, I mean, I know that's not the plan that you've submitted, but if a five-foot setback were to be required, what would the diff, I need to ask you another question first. That back parcel is going to be used exclusively for parking, okay. So if you were required to have a five foot setback, what would the difference in the number of parking spaces be between a five foot setback and a one foot setback? [30:05] Nate (Appellant): That's probably a better question for Justine, but I don't know that would make much of a difference on the plan that you had drawn. [30:13] Justine Drake: I'm not sure that, and my name is Justine Drake. I'm a civil engineer. I've been working with Nate since he brought this concept to me. So I'm not sure that the number of parking spaces would change as much as the functionality of those spaces, because let's say the existing one foot setback were to maintain, then you're now jogging the second level of parking as you move into the property, so that's the bigger issue, and I guess I'll further comment that the law is already limited to a 70 impervious area ratio, so he's constrained by the number of parking in that manner already, we're just trying to propose something that is sensible in terms of, you know, safety and usability, so I get that if you kept [30:59] Rachel Thompson: the one foot on the front parcel, I'm happy to have either one of you answer this question, but if you kept that one foot set back on the front parcel but had to have a five foot set back on the back parcel, I mean obviously you're going to have that irregularity and you're going to have a four foot extension on the back parcel, but how would that limit your ability to use the back parcel [31:29] Nate (Appellant): First thing that comes to mind is plowing is going to be a lot more awkward, as for one, a five foot setback, you know, is the only thing that might be awkward, and I'd have to map it out, is when you drive past the building, it's already somewhat tight to start a new parking lot and come in an additional four feet is going to be kind of an awkward angle, especially when cars are coming in and out versus driving down what would normally be a straight line, I think I'd add from an [31:59] Justine Drake: Engineering perspective again, that safety component, because if you're driving, your line of vision is headed toward the end of the parking lot, and then you suddenly have to jog over. I think that's confusing for people driving a vehicle. And also I think if you're, you're just kind of asking for any vegetation in that four foot, five foot area, you know, people are probably going to drive over that, and there's not really going to be much lawn. And same with plowing. I think it's going to be really difficult to maintain vegetation in that area, because people are naturally going to want to drive, you know, forward and assume that the parking expects all the way in line with the other parking that already exists. So [32:42] Rachel Thompson: I'm still trying to grasp some of this, and tell me if I'm getting this wrong, okay. It sounds like you could, the geometry would be such that you could have probably the same number of parking spaces with either a five foot setback or one foot setback, but it would be more cramped and difficult for cars to maneuver there. Is that, yes, right? I don't [33:12] Nate (Appellant): believe it would affect the amount of parking spaces physically, but it would be awkward. Instead of driving it straight down, you'd have to swing, go to the right. No parking lot really does that, but that'd be the biggest issue. I don't think it would be a [33:27] Rachel Thompson: is loss of space, okay. And one thing that I want to get clear in my own mind, Mr. Warden, is, and I think the process was, when you originally made your application, you had a contract to purchase the back lot, which had not been completed. You didn't actually acquire it until some later point, but you were able to make your application based on your purchase and sale agreement, right? Okay, when you made that application, what was your understanding of the setback requirements on that back parcel? Sorry, when i made my application for well actually i guess you made your application at a later point in time once you found out that you'd have to have a five-foot setback is that about for the appeal or yeah let me buy I asked that was a bad question I'll start over when you first decide to buy the property what was your understanding of the setback requirements on that back parcel [34:41] Nate (Appellant): When I had the pre-planning meeting, I was told at that meeting that they would be able to extend then the one foot setback on the new expanded parking that I had in the diagram. Let me just [34:53] Rachel Thompson: stop you for a second. That pre-planning meeting was with whom? I know code, I don't remember the [34:59] Nate (Appellant): Name of the person that was code, I know Brian Skinnell was there, which I don't know if he works for this city anymore. Asha was there, was two or three other people in the room I don't [35:09] Rachel Thompson: recall the names, but there was five or six other people in there. So was it both code enforcement and planning? I believe so. Yeah, okay, I interrupted you, go ahead and finish it. So by the time I got [35:20] Nate (Appellant): done with that meeting, the only notes I had as far as what I needed to do was a zone change, and like I said, they said they would be willing to extend the one foot setback because it made sense [35:30] Rachel Thompson: and it does, for multiple reasons. Okay, I think those that answered my questions, anybody have [35:38] Scott Pardy: have any other questions? Go ahead, Scott. I do, it looks to me, and I've been in that parking lot before, it looks to me like with moving everything forward to make that five foot setback brings everything closer to the building and makes it very difficult to even have any use of the building really, because I'm familiar with it, and it appears that if you're required to have that five foot set back, it's definitely going to interfere with your business. Is that correct? Yeah, it would be drastic, and to the lot that you purchased that's behind the building, correct? It's behind the building, and you 're you're required to have what, a buffer from the from the existing lot beyond what you bought, 20 feet? What I was told after we did the planning [36:37] Nate (Appellant): board and it was approved, I bought the lot, I believe Justine was emailed by Matthew, and kind of out of left field, we were told at first we were going to need a 75 foot buffer at the back of the lot because it was shoreland zone, which after, you know, that then it was because we changed the zone, something to do with SMPS being next to G and is it requires a 20 foot buffer on that side, which of course we were never told about up front either, right [37:06] Scott Pardy: and the 20 foot buffers, what's we're talking about here also, that would make the back lot completely useless, right? I see that. Yeah, so okay, I think that's it for my questions, is that it makes it really unusable. Okay, thank you. Other questions? Just one brief one concerning property and casualty, if there were ever to be a point in which some sort of accident were to occur between vehicles associated with customers or vehicles associated with Inland Marine, would you, do you have any sort of share of liability in that? And if so, do you expect that liability to increase with the implementation of these code enforcements? [37:54] Nate (Appellant): I mean, if, like, if a customer is driving, then that's, you know, unless I somehow am responsible for the way the parking lot is designed. I'm responsible when my employees are in a customer's vehicle or any of that type, which is throughout the day. That's nonstop. We test drive a lot of vehicles. So, yeah, if something happens, if one of my employees backs into a car because it's parked in an awkward spot when they're backing out of Base 6, which is closest to what the extended parking lot would be, that's on me, absolutely. Very good. [38:26] Rachel Thompson: Thank you once again. Other questions? Okay, thank you, Mr. Warden. Is there anyone else here that would like to speak in favor of the application? Hearing none, is there anyone that is opposed to the application that would like to speak? Good. [38:53] Jeff Labrie: Evening, my name is Jeff Labrie, I'm the Code Director, City of Bangor. The current site plan for the property at 1011 Union Street was approved on March 3rd, 1987. This approved plan included a five-foot parking setback and a planted buffer along the westerly side of the parking lot. The site was not constructed and maintain in accordance to the approved plan as mandated by Section 165-109 of the Land Development Code. The applicants are seeking site plan approval for the existing parking configuration, which derives from the original approved plan and the extension of the parking lot. Code enforcement is unable to approve, and it violates two provisions of the Land Development Code. Section 16573B establishes minimum setbacks in a shopping and personal service district with fewer than 100 parking spaces. The required setback is five feet. Section 16573D requires planted buffer yards for parking lots with five or more spaces. In this instance, a type C buffer yard is required along the two property lines abutting the adjacent government institutional and service district. This buffer must be a minimum of 20 feet in width to provide adequate screening. Approval would be possible from the code department if the existing site was restored to the 1987 87 approved conditions and the extension, the rear parking area, were redesigned to meet the required setback and buffer, which is the 20 feet. Questions. [41:00] Lisa Goodwin: [41:05] Robert Ballingall: So you said the original plan, the plan that the city has from the approved plan for the property from 1987, correct, has a five foot setback requirement on the westerly side. Is that the Union Street side or is that just the side of the property that is now being developed into a road but was previously just a property [41:24] Jeff Labrie: line? It's the westerly side that is now being abutted to encompass driveway. Do you have, I have an actual site plan drawing of that, right, okay, and it should stay it on there 1987. [41:39] Rachel Thompson: 1987. I don't, I don't, I don't think we have that. Yeah, I don't think we have the 1987 7 one in the [41:46] Jeff Labrie: record. I can come up and share that with you. Sure, and this [42:14] Robert Ballingall: is the five foot setback the [42:17] Jeff Labrie: highlighted? Yeah, gotcha, would technically be in this right here, which is five foot required. [42:23] Robert Ballingall: Yeah, and then within that pointy foot step back on the rear of the property here [42:29] Jeff Labrie: and there was the screening was also [42:38] David Szewczyk: excuse me, we probably have the mics on if there is, yeah, discussion, the screenings would be [42:44] Jeff Labrie: incorporated within that five foot, okay, gotcha. [42:50] Rachel Thompson: Did you want to make that part of the record? [42:55] David Szewczyk: Thank you, all right, that's it, David, yes, yeah, down here, so [43:06] Rachel Thompson: while we're looking that [43:07] Scott Pardy: oh fair enough, okay, anybody else have any other questions, let's go, yes, I did, was the buffer ever installed, the five foot buffer from 1987, it doesn't appear to be if you look on the [43:24] Jeff Labrie: parcel viewer, it's hard to say exactly, parcel viewer is not exactly accurate, is it, does it [43:30] Scott Pardy: appear that this was creep or was it originally the one just one foot, it's, it's hard to say, I mean, it really is, and this has been operating with the one foot setback for a long period of time, right, [43:49] Jeff Labrie: well it was approved in 87 site plan for a five foot setback, so we're assuming that's what it had, and it also was approved for parallel parking, not the regular parking [44:05] Scott Pardy: on the 20-foot setback in the rear, will that in your opinion, that would be a huge chunk out of the available parking space, correct, it definitely does stick out another additional [44:20] Jeff Labrie: if there is an actual five foot setback there now, it would an additional 15 feet from there, so [44:27] Scott Pardy: okay, thank you, other [44:31] Rachel Thompson: questions, I had one question about the setback, I'm sorry, not the setback, the screening, are there any provisions in the code about screening for one foot setback, no, okay, all right, thank you, anybody else, okay, thank you, Jeff, does anyone else want to speak in opposition, okay, I'll give you a chance in a moment, anyone else want to speak in opposition to the application, hearing, oh, I'm sorry, come on up, I [45:21] Speaker L (unidentified): Don't want to speak in opposition. I just wanted to provide clarification because I've been involved with this for a while. I actually had looked at the historical photos of this property going back to the 70s, and it appears the pavement has been the same since the 70s. So I just wanted to provide that. [45:38] David Szewczyk: Questions? Just that's Anya Collette, sorry. Yeah, planning officer, I'm Anya Collette, thank you. [45:44] Rachel Thompson: Yeah, questions. All right, thank you Mr. Woodard. One thing I'd like to add is the original plan [45:53] Nate (Appellant): from 78 does, and Anya dug it up and sent it to me, it's in my email. It shows a one foot setback being approved with normal like 90 degree parking spots. This 87 plan, I don't really understand why, but the building had two bays added onto it because they all grew the business, so they're gonna have a six bay shop instead of the original four bay. When they did that plan, for some reason the plan shows them going from a one-foot setback to a five-foot setback and then having parallel parking instead of, you know, your normal parking spots, which doesn't make any sense to go and expand the building and then limit your parking even more than what was originally there. And obviously, you know, where, who parallel parks in today's world, it's, you know, even in 87, nobody liked it. But it made no sense from the original 78, 79 plan to go from normal parking to, you know, okay, now you're gonna, you're here to expand your business, add two more bays, but we're gonna throttle it back to parking. But again, I didn't, I wasn't involved in the business back then, that was a long time ago. Since I've been involved, it's been the way it is now, and it's been that way since, you know, 78 or 79. [47:18] Rachel Thompson: Questions for Mr. Woodard? And again, I just want to make sure I've got the timeline clear. This 1987 site plan, that was before you acquired the franchise? Yeah. Okay, thank you. Does anyone else want to be heard on the application? Hearing none, I will close the public portion of the public hearing and turn it over to the board for a discussion. And just to structure our discussion, I think we should address the two variance requirements, excuse variance applications separately. And why don't we start out dealing with the variance request for what I've been calling the front parcel. So I'll open the floor to board members for discussion. [48:10] Robert Ballingall: I just want to clarify my understanding. So for the front parcel, is it true that the only thing, the only variance needed for that is the one foot? Or I guess I'm trying to clarify where the variance is needed on the front parcel, which setback are we talking about? [48:30] Rachel Thompson: Well, it's been, I mean, it's, it's been confusing for me regarding whether or not this is a pre-existing non-conforming use, which I don't think a variance would be required for, or an actual variance from the ordinance requirements. Requirements I think for Dave, correct me if I'm wrong, or Grace, I mean, I think since what I'm hearing is that it's the position of code enforcement that there needs to be, or at least that five foot setback would be required on that front parcel, that it's within our jurisdiction [49:11] Robert Ballingall: to consider it as a variance, and that's we're talking about the, I think the western side where that new road's going, and that's where we're talking about, right, so I mean, it's not the Union [49:20] Rachel Thompson: Street, not that, you're right, okay, yeah, and so essentially what we're talking about is whether or not Mr. Warded should be allowed to continue to have that one foot setback rather than a five foot setback [49:37] Scott Pardy: Discussion, Scott, it looked to me like, as this lady said, and I forgot her name already, I'm sorry, Anya, that according to what she said, that going back, as with many pictures, it's always been a one foot of setback, and so it appears to me it's always been non-conforming, is that right, David, I [50:10] David Szewczyk: think that needs to be asked to code enforcement, is [50:16] Scott Pardy: that right, Jeff, that's [50:17] Jeff Labrie: always been non-conforming, I would say with the 87 site approval, I guess technically it would have been illegal, so because they should have been with the, with the approved site plan of 87, it should have been, so it's always, it should have been made to the five foot setback with [50:37] Scott Pardy: the parallel parking, okay, got it, so it's always been non-conforming, okay, and but that being said, if the variance isn't allowed, it interferes with his business, right, it appears that way, yes, thank you, and as far as the, variance for the back lot, if it's, it's, if that he's already purchased, right, you've already purchased the land, can I make a suggestion [51:08] Rachel Thompson: Let's, let's talk about the bat, okay, confusing enough as it is, okay, and I think it'll be easier [51:15] Scott Pardy: For us to look at the all right, so we'll take the first yes first right, which is the one foot yes setback. Okay, if that's okay with Boardman. Okay, it would appear to me then that if it's going to affect his business and it's always been that way, that it's my opinion is it should be granted other. [51:39] Rachel Thompson: Comments, ask a question. [51:43] David Szewczyk: Is there a 20 foot buffer issue that comes into play with respect to the front lot? [51:50] Scott Pardy: No, I think that was just the back lot. [51:55] Rachel Thompson: i it as i've looked at the application and listened to the testimony tonight i think that the only 20 foot setback that was raised related to the back lot which was I think later no I shouldn't say waived but the city said didn't apply I thought the city said that the 75 foot set it was just you 're right Rob thank you for the correction you're right to the new bars okay thank thanks for that clarification and thank you Dave and I'm not [52:36] David Szewczyk: asking about a setback though there's a buffer provision buffer oh yeah you're right yeah right yeah that 's what i was asking about okay the planting requirement that only applies with respect to the back lot that and [52:54] Rachel Thompson: It but I don't think Mr. Woodard's asking for a variance on that right. Okay feel. [53:08] David Szewczyk: Good on that yeah, as long as everybody's and has. [53:14] Speaker L (unidentified): It things clear because I've talked to Brenda and code and primarily that interpretation was coming from her. The site plan from 1987 shows the vegetated buffer in that five foot setback, so her interpretation was it needed a variance from both vegetated buffering and the five foot setback for the existing parking, and then when you're looking at the back lot it would need a variance from the 20 foot buffer requirement and the five foot setback. Does that make sense? [53:53] Rachel Thompson: So that if we're going to grant a variance on the front lot, it's going to be both for the setback. [53:57] Robert Ballingall: And the buffer and vegetated buffering, I got it, okay, thank you. And I think if I may add, that's what I was hearing when you were asking about is there a one foot kind of buffering provision available, which kind of what can you put in a foot anyway, yeah. [54:17] Rachel Thompson: Dave and Grace, I also have a question, I want to make sure that as we look at this that we're looking at the appropriate variance provisions under chapter 165 11. We're looking at 165 11 B. [54:35] David Szewczyk: B not C correct, this is not a practical diff okay difficulty appeal, it's a variance appeal okay, anybody. [54:48] Rachel Thompson: Else have any other general comments or questions, go ahead, so he had mentioned that. He had gone to the planning board to change his code designation. If he hadn't have done that, would that have changed anything about him now? I think that's with respect to the backlog for the [55:07] Robert Ballingall: back. That was my understanding. The second parcel, the newly acquired parcel, was the one that had to be rezoned. Okay, so I think the one we're talking about now, that zoning wasn't changed. [55:18] Rachel Thompson: Okay, so this is okay. Yeah, so let me just itemize the findings that we have to make and then open up discussion on that. So to grant a variance, we have to, the record must show that A, the land in question cannot yield a reasonable return unless the variance is granted. B, the plight of the owner is due to unique circumstances of the property and not to the general conditions of the neighborhood. C, the granting of the variance will not alter the essential character of the locality. And D, the hardship is not the result of action taken by the applicant, excuse me, or a prior owner. And what we should do is we should address each one of those questions in order. Can I make a suggestion? Sure. It's, and maybe I'm wrong [56:21] Robert Ballingall: about this, or others don't share my view, but it seems to me that it's clear that criteria B, the applicant has met criteria B, C, and D. The only, the only question mark that is in my mind is whether the applicants met criterion A. And if others agree with that, perhaps we like, if we're going to vote on each of these independently, that we deal with the easier ones, the lower bars first, and consider the more difficult question last. But that's just my view. I'd be interested in hearing what others think. Yeah, the only thing that stands out to me, I think generally I agree with that. I think a tricky clause here is or a prior owner in subparagraph D. Yeah, I think that's where I get, I think some problems might come up. Yeah, and I think we need to at [57:18] Rachel Thompson: least have some discussion. Yeah, on that. So why don't we take them in order? Sure. So the first issue is whether or not the land in question cannot yield a reasonable return unless a variance is granted. And what I am, what I've taken from the, I don't want to, I don't want to guide the discussion. Does anybody have any comments that they want to make on that [57:49] Scott Pardy: particular provision? I personally would just like a clarification, the term, specifically the phrase reasonable return. Exactly what does that entail? Dave, I'll let you answer that one. [58:01] David Szewczyk: It means a reasonable return on the investment for the per, for the property. That's what I [58:07] Scott Pardy: thought. I just wanted to double check on that. Thank you. [58:11] Rachel Thompson: Comments on subsection A. [58:15] Robert Ballingall: So we're talking about the original setback, the five foot setback from the west side of the property. And so I mean if we're just thinking of the property without the back parcel that Mr. Woodard has recently purchased, it, I mean to me it does seem like given the testimony we've heard from him that it really would affect his ability to gain a reasonable return on his business, seeing that it depends on the ability to have a lot of cars parked in those lots. I mean it seems to me in light of that he's met criterion A. Yeah, I was thinking along the same lines, Rob. It's I think particularly the fact that this is a property used for vehicles incoming and going in and out and in and out. I think you know reasonable doesn't mean you know can't use it for anything, it's reasonable. And I think under these circumstances that it really turns on the critical aspect of egress really. [59:17] Scott Pardy: And once again just a clarification in terms when we were when we are discussing land it is also implied that we are also including buildings and any other ameliorations to the land as part of that. Yes, very good, thank you. Other comments or questions? [59:37] Rachel Thompson: Yeah, I mean as I look at the evidence if Mr. Woodard were required to increase that setback he's going to lose a lot of parking spaces and not be able to service as many cars and customers, and he's made an investment in his property based on an existing business because that's the way that the business was run prior to his acquisition. And so if we didn't grant that variance we'd be requiring him to you know take significantly less on his you know return on his investment. So any other discussion? So why don't we vote, why don't we have a discussion on each element and then have a vote on each one? So let's take a vote on Section 1A. Land in question cannot yield a reasonable return unless a variance is granted. Does somebody want to make a motion whether or [1:00:36] Robert Ballingall: not the applicant has met that provision of the ordinance? I will move that the Board finds that the applicant has met the requirement that excuse me the landing question cannot yield a reasonable return unless a variance is granted is there a second i second that did second any further [1:00:54] Rachel Thompson: discussion? All those in favor say aye. And that is unanimous. Section two is the plight of the owner is due to unique circumstances of the property and not to the general conditions of the neighborhood. So I'll open the floor to discussion on that element. [1:01:15] Robert Ballingall: Yeah, I think I'll just start by saying for the business that it is, it is kind of a narrow strip. I think it is definitely unique to the property, and I think given the history of the property in particular, I definitely find that the situation is because of the unique circumstances, not just general conditions. I don't think there's much more for me to say on that. Okay. [1:01:41] Rachel Thompson: Any further discussion? Somebody like to make a motion? Motion to approve the sub [1:01:51] Robert Ballingall: section one B that the applicant has met the criteria that the plate of the owner is due to unique circumstances the property not to the general conditions of the neighborhood and a [1:02:02] Rachel Thompson: second moved in second any further discussion all those in favor say aye it is unanimous subsection c the granting of the variance will not alter the essential character of the locality well [1:02:19] Robert Ballingall: I think granting the variance would maintain the status quo, so I definitely think yeah, it wouldn't alter the character of the locality, and I think knowing that area furthermore, it's consistent with what we know of the area. [1:02:34] Scott Pardy: And a additional clarifying question. When we are referring to the essential character, how I am understanding is that this variance will not affect the essential character of it being a commercial property. It's not as though we're transforming it into a residential property by means of this change. Right. Very good. Thank you very much. [1:03:00] Rachel Thompson: Further questions or discussion? Discussion motions in order. [1:03:08] Robert Ballingall: I move that the board finds that the granting of the variance will not alter the essential character of the locality and a second. [1:03:16] Rachel Thompson: I second that the second further discussion all those in favor. Hi it's unanimous item d the hardship is not the result of action taken by the applicant or a prior owner we'll open the floor on that issue as well so I mean if by prior owner we mean the [1:03:36] Robert Ballingall: applicant's father then it sounds like his father acquired the property in 1999 or 1998, so the hardship seems to be the result of whoever owned the business in 1987 and applied for the new site plan, right? Which it sounds like the applicant was unaware even of its existence. So it does seem as though the hardship is not the result taken by the applicant or at least the immediate prior owner. But it does seem to be the result of a prior owner. So I suppose that's the tricky, it's a tricky part. I think part of what makes it difficult is there is a lot of gaps in what happened over the course of decades. I think, you know, we know at least we've heard tonight that even looking back at images, it's been this one foot for since the 70s. Whatever happened in 87 is a mystery to it seems everybody. And so do we even know that it was an action taken by a prior owner? Do we know that? I don't know that. So I think there is some still [1:04:58] Scott Pardy: some ambiguity there in other words i would take that to be a preponderance of the evidence just like it would be in any other sort of like civil case of any kind yeah that's probably okay not saying that 's 100 a parallel but that's the way i'm supposed to understand it, just generally speaking. Here's here's the way that I analyze this, because [1:05:25] Rachel Thompson: I think this is kind of an unusual situation, because as I weigh as I think based on this record, which is not entirely clear, and all we can make this decision on is the record that's before us, is that and I'll sort of work backwards, Mr. Warded acquires the prop acquires the franchise, and the one foot setback has been in effect for years before that. Apparently in I think it was 87, there must have that must have been when the business was expanded to add additional bays, and what the site plan shows is a five foot setback rather than a one foot setback, which apparently has been the status quo for this property from the time that it went into business. So the meaning and or significance of this 1987 87 site plan is entirely unclear to me. So you know, there's nothing on this record that tells us that the granting of the site plan in 87 was conditioned on increasing the setback from the pre-existing one foot to five foot five feet. I mean, we just don't know what happened there. So it's it's not clear to me, and there's also no evidence on this record that in the almost 40 years of history they were talking about since that site plan was granted, that there's been any enforcement action by court for code enforcement to say, you know, this is out of compliance with the site plan that we granted. So on this record, I don't see that there's evidence that the hardship was the result of the of an action of a prior owner. So that's the way that I analyze it, and it and you know, frankly, it's hard to tag Mr. Woodard with responsibility [1:08:06] Scott Pardy: Under that set of facts, I think I would also add to your point that the difficulty in all this for me, anyway, has less to do with a proper historical analysis as more of a inability to establish a historiography between the various changes in code enforcement regulations over the course of several decades and how it affects everything now. We are lacking the ability to make a appropriate interpretation, let alone the inability to actually see the facts of these changes in front of us any. [1:08:48] Rachel Thompson: Other discussion, then emotions in order. [1:08:56] Robert Ballingall: I'll move to find that granting the variance that the hardship is not the result of action taken by the applicant or a prior owner. Is there a second? Excuse me, yeah. [1:09:09] David Szewczyk: Go ahead that motion. I just want to make sure that the it should be stated in the positive that oh that the either the applicant has satisfied the burden to show that the hardship is not the result of the action. Is that what I wanted to say? Is exactly what I wanted to. [1:09:28] Rachel Thompson: Say. Yeah, there you go. And is there a second? Any further discussion? All those in favor say aye. It is unanimous. Okay, so Mr. Woodard, we have oh wait a minute now we have to also have to vote on granting the variance, correct? One more vote if I'm with respect to the front. [1:09:52] Robert Ballingall: Property. Oh, to the front property, right. And if I may, we're talking about the setback and the buffering. Yes. Okay, just wanted to make sure that this yes, yep, good point. Great. So would someone. [1:10:02] Rachel Thompson: Like to make a motion regarding the granting of the variance on both the setback and the buffering? So moved and a second. Moved in second to approve the variance. All those in favor say aye. So we have voted to approve the variance on the front parcel. So let's move on to the question of the back parcel and why don't we go through the same analysis as we did with the front one and start out with subsection 1a whether the land in question. [1:10:38] Robert Ballingall: Question cannot yield a reasonable return unless the variance is granted. If I again may add, I do would we want to separate out separate out the 20 foot buffer and the five foot setback as separate analyses or is this again a holistic variance from both as one analysis? Does that. [1:11:01] Rachel Thompson: Make sense? Yeah, it does make sense and I guess what I'm struggling with maybe needs some help from Dave and Grace is that if we're going to grant a variance on the five foot setback then practically speaking you can't have the 20-foot buffer so do we need to include both of them? Well. [1:11:22] David Szewczyk: With respect to the front lot, you voted that the applicant had satisfied the elements for variance, and that the variance was granted with respect to both the setback and the buffer, and you also voted on each element and with regard to the setback and the buffer. So I would just suggest that you proceed in the same manner. Okay, sounds good. So let's open the [1:11:51] Rachel Thompson: floor to discussion on whether or not the landing question cannot yield a reasonable return unless a variance is granted. Go [1:12:04] Scott Pardy: ahead, Scott. It's okay for me to comment, right? Oh, absolutely, you just can't forward. Yep. Okay, it appears to me that the new parcel of land will have no value if to the current owner if this isn't granted. In other words, he's bought the land, paid for the property, and he needs to have this for parking, and it also it would appear to me that if we didn't grant the fi the one foot versus the five foot that it would just make it very odd looking amongst other things, and would make no make no real sense because we're we're not really doing anything different, just the first the first lot will have one foot and the second one would have five. Besides looking odd, it wouldn't make any difference, and that's that's what i'm looking at. And as far as the buffer goes, it appears that he needs that variance from the buffer in order to accommodate the amount of parking spaces that he needs that his business [1:13:08] Robert Ballingall: has grown into. Thank you. Yeah, on top of that, i would also add for me, i think the safety factor is significant. Again, when you have a bunch of vehicles coming and going, that weird angle that would be created by having one setback but not the other, I think definitely goes to, I think not having a reasonable return, because it introduces more problems in some ways. I think just to add on to everything that you've already said. Other comments or questions? [1:13:44] Rachel Thompson: Let me play, I'm struggling with this, and so let me play devil's advocate. It what i heard in this record is that understanding that you'd have this odd jog out with the five foot setback, that would not necessarily limit the number of spaces, although it would make it more i guess awkward, i'm sorry, harder, yes, yeah, to get in and out, but not necessarily impossible. I realized that certainly would be inconvenient, potentially presenting some safety issues, but i'm not sure that disqualifies the parcel from yielding a reasonable return so what I'd like to hear from my fellow members is dissuade me from that from that interpretation because I'm I mean I'm struggling with it and I've you know I've often said at meetings in the past that I 'm a process guy and what's important for me is that we treat everybody that comes before this board the same and that we try to be and that the way that we do that is we be guided by the words of the of the ordinance itself so you know convince me that the evidence that's in this record does not allow Mr. Woodard to yield a reasonable return from the property [1:15:51] Robert Ballingall: because I'm willing to be convinced. I think if you look at the images we have here, so there's item 10 and item one. I think in both of those items, and I think this is in the packet that Mr. Woodard submitted, you can see images of the back parcel there and of the planned parking he wants to construct, but also there's this dashed line in image one, or item one, that corresponds to the shaded green area in item 10. And I think, if I'm not mistaken, that is, this is the area that code is requiring for both the buffer and the setback. Oh, okay, the green shaded area, is that what you're talking about? Oh yeah, you should come to the mic to make [1:16:51] Nate (Appellant): sure that the record can hear you. An item 10, the green shaded area at the back is wetlands, but it's under, it's like 2600 square feet. DEP said anything under 4300 square feet I don't [1:17:04] Robert Ballingall: need permits for, so that's not that green shaded area, that has nothing to do with the required buffer. Okay, I see, okay. I mean, I just, you know, it's kind of hard to get the dimensions of that back parcel there, but just looking at it, I mean, it, if there has to be a 20 foot buffer on the back of it and a five foot setback on the side of it, doesn't leave much for parking, right? Like it sure seems to reduce this. I mean, it's hard to see what it would actually be, but I think that gives you a sense, I mean, I suppose there's, there is a little on, in item one you can see there's a little in space there, 24 feet between the two sides of the proposed parking lot expansion, so I guess that gives you some sense of what, of what a 20-foot dimension would be, but [1:17:55] Scott Pardy: You know, other discussion or comments? Yes, and I agree with you. It would, it would definitely be, I would see that it's a, I would be a, hardship because it would definitely reduce the number of parking spaces for land that he's purchased, assuming, making an assumption that he would be able to accommodate all those, all those parking spaces. So it's definitely, to me, [1:18:19] David Szewczyk: it's definitely would be a hardship. Can I ask a question, Chair? Sure. Does the record show the dimensions of the back lot? I [1:18:35] Robert Ballingall: think it was 100 by 100. Okay, yeah, that's my memory. [1:18:41] David Szewczyk: Applicant told us, okay. So a 20 foot buffer and a five foot setback within a 100 square foot, is that what we're saying, a lot? Okay, thanks Steve. I think that you know, despite what may have been stated as not losing any spots, there's also in the record just how big the lot is compared to how much would be taken up by the buffer and the five [1:19:14] Robert Ballingall: foot buffer, the five foot setback. Yeah, I was gonna add, since we're taking these things together, you know, the buffer as well as the setback, it's not just a matter of the setback. So I think when you're looking at those two things happening simultaneously, it cuts into a huge fraction of this parcel that I think, Scott, to your point, was purchased at least in maybe some reliance on these, the understanding with the city that this would be doable. And again, I think that further point, and you know, the ordinance says reasonable. Again, I think, you know, we've seen ordinances that say, you know, no return, no reason, no return, or you know, much more, much stricter language. I think we're talking about reasonableness here, not absolutes. Other [1:20:07] Rachel Thompson: discussion? If you see how this is laid out in his parcel of land, everything in the front here is for unpacked vehicles, and obviously he's going to be needing room for larger vehicles in the back. So by taking up 25 feet of that, you're not gonna be able to put anything longer than a compact car, or maybe even a standard car. Thanks, other discussion? Hearing none, would somebody like to make a motion? [1:20:41] Robert Ballingall: I will move that the board finds that the record shows that the land in question cannot yield a reasonable return unless a variance is granted. And a second? [1:20:51] Rachel Thompson: I'll second it. Moved and seconded, any further discussion? All those in favor say aye. It's unanimous. Subsection b, the plight of the owner is due to the unique circumstances of the property and not to the general conditions of the neighborhood. [1:21:08] Robert Ballingall: Open that up for discussion. I think the same considerations from our review of the front or original lot apply to the new or back lot. Any other discussions? I will move that the board finds that the record shows that the plate of the owner is due to unique circumstances of the property, and not to the general conditions of the neighborhood, and a second. Moved in second for the discussion. All those in [1:21:44] Rachel Thompson: favor say, I right. Subsection C. The granting of the variance will not alter the essential character of the locality. [1:21:53] Robert Ballingall: I think the same discussion applies, you know, the abutting parcel. So anybody like to, would you like to make a motion to that effect? I would love to make a motion to that effect. I move that the board finds that the record shows that the granting of the variance will not alter the essential character of the locality, and a second. Any further discussion? All those in [1:22:14] Rachel Thompson: fair say aye, and item subsection D, the hardship is not the result of action taken by the applicant or a prior owner. [1:22:26] Robert Ballingall: Again, see above. I think we do have a little bit of difference in this one because this is a recently acquired property. I don't think that's a disqualifying factor because I don't think the hardship in this case, I don't know that the applicant can took any action that created this hardship, right, but I do think it is distinguishable from [1:22:49] Rachel Thompson: the front, yes, parcel, yeah. I mean, again, I, at least the way that I look at it is that I don't think you can acquire a property knowing that the use you want to put it to will require a variance and then ask for the variance. In other words, if you go into the, if you acquire the property with the knowledge that it doesn't comply with the ordinance but go ahead and purchase the property anyway and then ask for the variance, I, John Potter, I don't think you meet D. [1:23:48] Robert Ballingall: John Potter, So here it's the rel, it becomes relevant the sort of unfortunate set of back and forth that Mr Woodard had with the city, I think that's right. [1:24:01] Rachel Thompson: John Potter, which [1:24:05] Scott Pardy: sort of puts us in. [1:24:09] Rachel Thompson: John Potter, A difficult position, maybe it doesn't. But I think, I think we ought to at least consider whether or not that puts us in the difficult position of trying to be fact finders and trying to assess which versions of the fact, more likely than not, correct. I mean I'd like to avoid that if we can. [1:24:39] Robert Ballingall: So my immediate thought when you said that was that I don't know from the record that it's, it's not at least clear to me that the applicant was under the impression that he would have to get a variance. I think that's part of the, what's ambiguous in the record is whether or not you would need a variance. I don't know that was actually communicated because I think there was this back and forth about whether it's a pre-existing non-conforming law and that could be extended and I mean if you're not a legal expert, which most property buyers are not, I would say yes, I think it's incumbent if you're going to buy a property that you look into these things, but I don't know that is necessarily disqualifying under these circumstances. But I do think, to your point, Ed, that gets more into fact-finding, which is a sticky, it is sticky. I mean, that is just true. [1:25:37] Scott Pardy: I would like to add to that sentiment. Just based on what I'm seeing here in terms of the items that have been established as part of this appeal, the original February 13th pre-planning meeting, we don't have anything about that in the items provided by Mr. Woodard, as I understand it. Therefore, the one fact that I have in front of me regarding what has been established in terms of the necessities to increase the setback or implement a buffer is based on this email established Thursday, August 14th, which is after the fact. Now, if it is possible to obtain additional facts of that pre-planning meeting of February 13th, that would be lovely, as I think it would allow us to remove any of these unknowns that are certainly plaguing this part of the conversation. But until that happens, I don't know. [1:26:40] Robert Ballingall: I think what we do have a record of is that there was no record kept of that pre-planning meeting. Right, so we do, we know that we can't get that information, we can't, we can't get like a proof [1:26:50] Scott Pardy: of what happened, right, so we can't, yeah, as far as my understanding that is where we're currently at. However, if there is any possibility to obtain something that way, the burden of proof can basically lie in Mr. Woodward's favor, then it would lead to a greater sense of assurance in our part in terms of making a decision. Chair, could I make a comment? I just want to remind [1:27:19] David Szewczyk: everyone that the evidence in the record is not just the paper evidence that you have before you, but it's also the oral testimony that was presented tonight. That's part of the evidence you have, the applicant's testimony and the rest of their testimony, that's, that's part of [1:27:37] Scott Pardy: the record and there was testimony about that meeting and I guess my additional question that would that be available for a board review and any potential facts and findings from this point forward I don't understand your question would it be possible for us to review that as part of the additional fact-finding process to review the oral testimony I'm talking about the [1:28:04] David Szewczyk: oral testimony that you just heard tonight okay that you just heard it okay so yeah I mean that you can review that as part of your fact finding okay I think part of your function is fact finding when you have an element like the hardship is not the result of action taken by the applicant or a prior owner I think part of your function is to is to find facts based on the record and record includes both the paper that you have presented and the testimony that was given tonight [1:28:37] Robert Ballingall: so well that's fair thank you yeah I think to that point I think the applicant presented in his testimony tonight that it was not his understanding that he would need a variance that is how I heard his presentation is he had these communications with various staff and it not at any point until after the property had been acquired wasn't made clear or not even necessarily clear was it communicated in some capacity that some sort of variance would be required so I think for that reason I think the hardship comes more as a result of I don't know miscommunication as part of it at the very least but I don't think it's action necessarily taken by the applicant in this case oh [1:29:28] Scott Pardy: go ahead Scott I'm sorry it 's I think it's pretty obvious that the hardship is not the result of action taken by the applicant or the prior owner certainly isn't the prior owner but it 's to exactly what you said it has really nothing to do with anything other than other than other than the testimony we've heard tonight [1:29:52] Rachel Thompson: tonight thank you here's the problem that I have and Dave help me out if my analysis is wrong but if I buy a home in a residential neighborhood and I want to have a chicken coop in my backyard and sell eggs out of my backyard which I think is prohibited in a residential area but I don't realize that when I buy the house and I just I buy it on the misapprehension that this is something that I can do and I'm then told by code enforcement you can't have those chickens and that rooster in this zone And I then apply for variance based on that. I don't think that my misapprehension of the law that applies to my parcel is meets subsection D. And to take that analogy to the present case, you know, there's no evidence on this record that when Mr. Warder entered the purchase and sale agreement for that back parcel that he had any knowledge one way or the other about the setback requirements until he started his discussions with the city. But it is pretty clear that at that time that the ordinance would have required a five foot setback. So tell me if you know my chicken coop analogy is off base. [1:31:58] David Szewczyk: Well your chicken coop analogy is a little more complicated in real life with regard to allowing chickens to be kept. But I will say that it appears part of the record tonight that the applicant testified that he intent wanted to purchase that back lot for the purpose of adding parking to his business. That was the reason that he purchased the back lot. When you're looking at the and he also had testimony about discussions that he had with the planning office in the and the city and I understood that to be before he made the purchase and there was testimony about what was said to him. When you look at the element the fourth D here it says the element that has to be satisfied is the applicant has the burden of showing that the hardship is not the result of action taken by the applicant or a prior owner. Now when you look at that element with respect to the front lot when you voted on that you had to be concerned about the actions taken of the previous people that either leased or owned that plot. With regard to the back lot I don't think you need to be concerned about any prior owner because the prior owner didn't purchase the property for that purpose. This applicant did. And so in that sense it's a little easier on the analysis because you don't have to wonder about a prior owner. At least that's the way it appears to me. So your fact finding is the action that he that this applicant took did that result in the hardship or not. I mean when you take into account you got to find the facts what actually occurred. I don't know that there was any testimony that was contrary to what the applicant testified to as to what happened before he bought the property, right. So I guess you find the facts and then you apply the facts as you find them to the law which is this element and that's the best I can. Okay. [1:34:34] Rachel Thompson: Thank you. Other discussion hearing none someone want to make a motion. [1:34:48] Robert Ballingall: I move that the board finds that the record shows that the hardship is not the result of action taken by the applicant or [1:34:55] Rachel Thompson: a prior owner. Second. Any further discussion? All those in favor say aye. It's a vote. So now we have to take a vote that regarding satisfying all of the elements of the variance. Someone [1:35:15] Robert Ballingall: want to make a motion? I move that the board finds that the applicant has satisfied all elements [1:35:20] David Szewczyk: of the variance. And a second as well. The motion be whether the very that the variance is granted with respect to both the setback and the buffer requirements in the ordinance. I move that [1:35:39] Robert Ballingall: the that the board finds that the applicant has met all four elements of the variance with respect to both the setback and the buffer. You know, thank you. And a second. [1:35:51] Rachel Thompson: A further discussion? All those in favor say aye. That's a vote. So the variance is granted on the back parcel as well. Last item on the agenda is other business. Does anybody have any other business to bring before the board? Hearing none, would someone like to move to adjourn? [1:36:10] Robert Ballingall: I move to adjourn. Second.