York Town News
Appeals Board continues hearing on whether growth permit issued for house can be used for a barn apartment
By Melissa Wood
YORK - If someone obtains a growth permit and the town subsequently issues a building permit that the person does not pay for or pick up, could that growth permit be used for another dwelling on the same property?
No, according to the Code Enforcement Office, which voided a building permit issued in 2005 for the property of Curtis W. Clark, Jr., located at 4 Woods Lane.
But the Appeals Board decided to continue the case to its next hearing on July 11 so they could look at the Residential Growth Ordinance in effect for 2003 and talk to Code Enforcement Officer Tim DeCoteau, who was unable to attend the June 27 Appeals Board meeting.
Clark had originally obtained permits to build a barn and a house on the lot, and applied for and was issued a growth permit for the house.
He had already started building the barn when he decided to install a 750-square-foot apartment inside the barn. According to Clark, DeCoteau told him he couldn't have an apartment without the house completed.
"We got to a point where we went to the bank for money and they asked for some paperwork on an occupancy permit... [DeCoteau] said we couldn't have an apartment unit above the barn without a dwelling unit on the property so that it would be an accessory unit, not a primary living unit," said Clark.
Clark decided not to go forward with plans for the house, but to use the apartment in the barn as the primary dwelling unit instead.
"Essentially, to make a long story short, all we're looking for is just to have our growth permit reinstated; you know, pay the fees ... and actually use the upstairs of the barn as our primary dwelling rather than an accessory dwelling, and then we'll deal with the house in another five years or whatever," he said.
What the board needs to decide is whether the growth permit issued for the house in 2005 could be applied for the apartment use instead, or whether it had expired. A building permit issued for the house was not picked up or paid for by the Clarks.
Appeals Board Vice Chairman Joseph Carr said the growth permit should still be valid since a part of the ordinance states that if an applicant has a complete application for a growth permit prior to May 17, 2003, the application shall remain valid, and the permit was applied for on March 6, 2003.
"So therefore there's still a growth permit pending for that particular house, which he could use for his barn; it's on the same property," said Carr.
But board member Peter O'Connor said that Section G, cited by Carr, was in fact put in place because the growth permit system had been changed and the town did not want those who applied for permits under the old system to be pushed back on the list.
"They are protected on the growth list, but that doesn't mean forever," said O'Connor, who said he wanted to review the ordinance from 2003, which was not available at the meeting, before making a decision.
Board members also pointed out that if the building permit had been paid for and no improvements had been made to the property, it would have automatically expired.
Clark said, however, that improvements were made the property such as a septic system and well that were inspected by the town, a fact that board members wanted to discuss with DeCoteau.
"I'm a little concerned if they allowed him to continue along with the project knowing full well what has taken place," said Moulton.
Earlier, in a unanimous vote, the five members denied an administrative appeal regarding a lot division from Tim and Gail Borowski of 16 Gowen Lane, but at the same time were sympathetic to the property owners' plight and put wording in the denial that would make the division a possibility if they were to move a barn on the property.
The division was denied by the Code Enforcement Office because the lot had insufficient setbacks due to a barn on the property that is close to the road and because Gowen Lane is not the required 50-foot width and the lot does not have enough street frontage.
The Borowskis and neighbors went to court in the mid-1990s over who owned the road, and the town of York intervened in the case then decided to declare eminent domain to resolve the issue.
"My clients were prepared to fight the eminent domain taking," but instead obtained a mediator and worked out a settlement agreement with town, said Attorney James Bartlett on behalf of the Borowskis.
Although the warrant for the eminent domain called for a 50-foot wide right of way, it ended up being a little over 40 feet wide, and although there were plans for a cul-de-sac, that was never created either, according to Bartlett - something his client had no control over, but which affects them now.
Appeals Board Chairman Michael Swant suggested that the road leading to the property not be held to the 50-foot standard but that the road in front of the property should.
"I think in this case they should not be held to require 50 feet on this section here," said Swant.
Other board members agreed and also suggested the Borowskis move a barn on the property back from the road, which would solve both setback and frontage requirements since they would then be able to construct a cul-de-sac at the end of the road.
In the motion, Carr said he found the Code Enforcement Office erred in requiring the road leading to the property, but he did not err in requesting a 50-foot right of way on the property line to create a new lot along with the 65-foot cul-de-sac or in requesting that the barn be 50 feet from the right of way.
