TOWN OF YARMOUTH 200 Main Street, Yarmouth, Maine

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1 TOWN OF YARMOUTH 2 Main Street, Yarmouth, Maine 496 wwwyarmouthmeus Alexander Jaegerman, FACP Director of Planning & Development Tel: ajaegerman@yarmouthmeus Fax: PLANNNG BOARD REPORT YARMOUTH, MANE Contract Zone Agreement Request Paula Groves, Applicant Map 45 Lot 85, Affecting Lots 81,82,83,84 Prepared by: Alex Jaegerman, Director of Planning & Development Report Date: November 11, 215 Meeting Date: November 18, 215 Applicant s Request Paula Groves is seeking a contract zone for her property in the LDR Zone on Almonte Street on Cousins sland to allow her to sell some land to her abutters, not currently allowed because her parcel size is below the LDR minimum lot size of two acres Her situation is unique in that her parcel is the largest within the block (bounded by Almonte, Cousins, Hillcrest and Spring/preservation parcel), and several of the abutters have such constrained lot sizes that they are having difficulties siting their residences, leach field, and shed, respectively on their small lots n one case, her abutter Knecht has previously purchased an easement on the Groves lot to enable a building addition that does not meet lot setbacks t is unusual to allow an easement to be counted as lot area for setback purposes The Town recently sold the lot containing the fire barn to another abutter, Sheehan, who has negotiated an easement from Groves to site his septic field Another abutter, Rutherford, has a shed which is nonconforming to the required rear setback To the extent that any of these abutters might be interested in purchasing portions of the Groves lot, it could alleviate the difficulties experienced by the smaller lots in the block, and leave Groves with a still good sized lot, albeit less than the 2 acre minimum lot size Our Latchstring Always Out

2 Contract Zone Provisions of Chapter 71 CONDTONAL OR CONTRACT ZONNG Authorization for conditional or contract zoning recognizes that circumstances existing when adherence to uniform design or performance criteria can preclude creative, safe and sensible land uses and development which would otherwise advance the goals of the Comprehensive Plan and the public health, safety and general welfare Conditional or Contract Zoning is a discretionary legislative process reviewed on a casebycase basis As such, contract or conditional Zoning decisions are particular to the circumstance of each lot or structure applicable to review, does not establish nor rely upon precedence, and is available only when the Town Council determines it advances the public good 1 Conditional or Contract Zoning, as defined by this Ordinance, is authorized for zoning map changes when, in order to further the public health, safety and/or general welfare, the Town Council finds it necessary to impose certain conditions or restrictions upon the applicant's use of the land, which conditions or restriction are not imposed upon other similarly zoned properties a Alternatively, the Town Council may find it necessary or desirable to waive or modify one or more standard conditions applicable to a particularly lot, Building, or use of a parcel within a district, and impose special conditions or restrictions not imposed upon other properties within the zone n such circumstances the provisions and authorities of contract or conditional zoning Article VV may apply even when the contract or conditional rezoning modifies applicable standards within a zone (as applies to the subject property only) and does not change the zoning district or designation itself Such alternative application shall not be authorized: (1) To create or authorize a use not permitted within the zoning district (2) Except when all other conditions, procedures, and requirements of this Section are met (3) Except when the general purposes and goals of the district, as defined by the Comprehensive Plan, are advanced by such conditional or contract zoning (4) To be applied in the Village or Village District unless the applicant submits, in addition to the requirements of Article VV8, Building plans and profiles of sufficient detail to allow a determination as to appropriateness of exterior architectural design features, construction materials, landscaping and aesthetic visual impacts 2 Rezoning under this subsection must be consistent with the Comprehensive Plan for the Town of Yarmouth and must establish rezoned areas which are consistent with the existing and permitted uses within the original zone The term "consistent" as used in this subsection shall mean "not contradictory or incompatible with" Any contract zone requires findings to determine compliance with the provisions of Chapter 71, Article V, V; Conditional or Contract Zoning which reads in pertinent part as follows: Comprehensive Plan Analysis Consistency with the comprehensive plan is required for all rezonings, including contract zones The comprehensive plan section addressing the LDR zone reads as follows:

3 Comprehensive Plan Excerpt 1 LOW DENSTY RESDENTAL A General Description The Low Density Residential (LDR) designation includes most of the mainland area east of 295 that is currently zoned LDR together with Cousins and Littlejohn slands This area should continue to be an area with low density residential development reflecting its scenic, coastal character and limited vehicular access A focus should be on preserving the rural/coastal character of this part of Yarmouth as additional development occurs B Allowed Uses The allowed uses in the Low Density Residential designation should include a wide range of residential uses including manufactured housing on individual lots together with agricultural uses and community facilities C Development Standards The basic residential density in the Low Density Residential designation should continue to be one dwelling unit per two acres Use of the Open Space Residential Development ordinance should be encouraged when subdivision of land occurs Development should also be encouraged to protect coastal areas and to include these as part of the common open space in cluster developments The other development standards should be similar to the current LDR requirements Additional requirements should apply to Cousins and Littlejohn slands to protect their special character While the developed parcels in this block do not meet the two acre minimum lot size, the contract zone would not, in the aggregate, increase the degree of nonconformity For the lots that could expand, their degree of nonconformity would decrease to the same extent that the Groves lot would become less conforming While the average parcel size will not change, the smallest parcels would all increase their lot size, and the Groves lot will still retain an acre or more For practical purposes, the existing smaller lots demonstrate that their relatively smaller lot sizes are problematic for purposes of setbacks and siting of septic, while the Groves lot will not produce new nonconformities as to setbacks if allowed to redistribute the land area to abutters As for consistency with the existing and permitted uses in the underlying LDR zone, these single family uses and nonconforming land areas are prevalent on Cousins sland A large number of lots do not meet the current requirement of two acres, according to the analysis conducted by Ms Groves The actual uses on this block are unchanged by the contract zone, and no additional residences are enabled by the proposed land transfers The Planning Board held a workshop on this item on October 14, 215 At that time the Board expressed concern about the use of contract zoning to allow such land transfers involving nonconforming lots and requested some early feedback from the Town Council on the general Our Latchstring Always Out

4 policy and acceptance of such a process The Planning Director had an opportunity to discuss this with the Town Council on October 22, 215 at their Operations Committee meeting The sense of the Town Council was for the Planning Board to proceed to review the request and present their recommendation, and that the concept of utilizing contract zoning to address this type of land use issue is generally appropriate, without judging the merits of the instant case At the October 14 workshop it was discussed that the intent of this proposed contract zone agreement is to redistribute land within the block to relieve the smallest lots of their limiting constraints, but not to create any additional buildable nonconforming lots For this reason an additional provision has been added to the CZA to require that any 5x1 foot lots purchased by abutters must be added to the abutters lots and under the same ownership name V Recommendation The land redistribution envisioned and made possible by this proposed contract zone agreement has the potential to benefit all of the property owners without detriment to the Groves lot The overall degree of lot size nonconformity within the block is not worsened by the possible transactions and resulting land transfers The enlargement of the smallest lots will enhance their value and utility for present and future owners, and will reduce the complexity of the various easements and encumbrances on the Groves lot that benefit the abutters We see no negative impacts or inconsistency with the policies of the comprehensive plan, and therefore conclude that the net effect is beneficial and recommend that the Planning Board support the proposed contract zone agreement in its recommendation to the Town Council V Motion On the basis of the Planning Department Report dated November 11, 215, the application, testimony and material presented by the applicant, and the information presented at the public hearing pertaining to the proposed Contract Zone Agreement by Paula Groves, applicant, Map 45, Lot 85, at 21 Almonte Avenue, Cousins sland, the Planning Board finds that the proposed Contract Zone Agreement [is/is not] consistent with the comprehensive plan and the uses allowed in the underlying zone, and therefore [recommends/does not recommend] to the Yarmouth Town Council that the Contract Zone Agreement be enacted Such motion moved by, seconded by, and voted in favor, opposed, (note members voting in opposition, abstained, recused, or absent, if any) Attachments: 1 Application letter and support documents from Paula Groves 2 Draft Contract Zone Agreement with two exhibits

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9 CONTRACT ZONE AGREEMENT This Agreement made this _ day of, 215, by and between the Town of Yarmouth, Maine, a municipal corporation with a place of business at 2 Main Street in Yarmouth, County of Cumberland, State of Maine (hereinafter the "TOWN") and Paula V Groves resident property owner of the Town of Yarmouth, Maine having an address of 21 Almonte St, Yarmouth, Maine (hereinafter referred to as "GROVES") WTNESSETH: WHEREAS, GROVES is the owner of record of land with a building thereon in the Low Density Residential Zoning District (LDR) designated as Map 55 Lot 85 of the Assessor's tax maps (the "LOT") located at 21 Almonte Street in Yarmouth, Maine and comprised of 13 lots as shown in the Plan of Land of the Seashore Land Co Cousins sland, Maine of 191, which map is attached as Exhibit 1, being lot numbers 2531 and 556, inclusive with a total land area of approximately 65, square feet, and WHEREAS, GROVES owns and maintains a home and accessory structures and improvements that occupy portions of lots 56, 57, 58, and 28, thereon, and WHEREAS, all abutting developed parcels owned by others are significantly smaller in area and could benefit from and become less nonconforming with the lot area and structural setback standards of the Town of Yarmouth Zoning Ordinance if some portions of the Groves parcel could be divided from Tax Map 55, which map is attached as Exhibit 2, Lot 85 and added to the land area of one or more of the abutting properties including Tax Map 55 Lots 81, 82, 83 and/or 84, and WHEREAS, GROVES has requested approval under contract zoning authority to sell or convey the fee interest in one or more of lots 25, 3, 31, 55, and/or 6 (each a 5 x 1 lot) the sale of which would make Tax Map 55 Lot 85 less conforming to the lot size requirements of the LDR Zoning District (2 acre min) but still substantially more conforming than abutting developed lots and the general development pattern in the larger nearby properties of the Seashore Land Co development, and WHEREAS, such division and sales to abutters only, if authorized, would increase the lot sizes and the degree of conformity to such abutting properties but shall not create any net new developable parcels and therefore no increase in the net residential density of the area, WHEREAS, the Town Council finds that the authorization for sale or transfer any or all of lots will advance greater general conformity to the purposes and requirements of the Zoning Ordinance in terms of lot size and structural setbacks, and is in the best interests of the public and allows Lot configurations more consistent with the general pattern of development and the character of the neighborhood, and WHEREAS, pursuant to Title 3A MRSA, Section 4352(8) and Chapter 71, Article V Section V of the Yarmouth Town Code, application was made for contract zoning to authorize the above noted divisions and sales, and

10 WHEREAS, the Town Council has determined that the proposed divisions and sales is consistent with and advances the purposes and intentions of the 21 Comprehensive Plan of the Town of Yarmouth, NOW, THEREFORE, in consideration of the mutual covenants contained herein and the authorization of the Yarmouth Town Council to modify and/or waive the general standards of development in the Low Density Residential District, specifically to allow the GROVES lot (Tax Map 55 Lot 85) to be divided and any of lots 25, 3, 6,55, and/or 31, to be sold to the abutting land owners now or in the future as indicated below and only to be made as contiguous and undivided parts of the abutter s parcels (to any or all of Tax Map 55 Lots 81, 82, 83, or 84), Lot 6 to Tax Map 55 Lot 83 (now or formerly Sheehan) Lot 25 to Tax Map 55 Lot 84 (now or formerly Rutherford) Lot 55 to Tax Map 55 Lot 82 (now or formerly Knecht) Lot 31 to Tax Map 55 Lot 81 (now or formerly Gentile) Lot 3 to Tax Map 55 Lot 81 (now or formerly Gentile, but only in conjunction with Lot 31), or to Tax 55 Lot 82 (now or formerly Knecht, but only in conjunction with Lot 55) TOWN and GROVES agree as follows: 1 ZONNG CONSDERATONS Notwithstanding the Yarmouth Zoning standards to the contrary, GROVES may sell any of lots 25, 3, 6, 55, or 31 to an abutter as defined and limited hereinabove, and such division shall be deemed a boundary adjustment with an abutting property and not the creation or division of land, and shall not be deemed to increase the nonconformity of Tax Map 55 Lot 85 provided no new development parcel is created and provided that the GROVES parcel shall not be reduced in size to less than 4, square feet in total and provided that the sale of any lot shall not cause the existing GROVES house and accessory structure(s) to have a side or rear setback of less than 2 feet from the outside perimeter of the remaining portions of Tax Map 55 Lot 85 Any abutter who acquires such lots shall be required to place the acquired property in the same name as the owner of record of the parcel containing the home that exists on the said abutter lot, so that the entire accumulated property is under a single ownership entity 2 PLAN FLNG Upon completion of such sale or sales of lots, GROVES shall submit to the TOWN a plan of the newly configured Seashore Land lots (Exhibit 1) and a copy of such Seashore Land lot reconfigurations shall be filed along with a signed and executed copy of this agreement with the TOWN and in the Cumberland County Registry of Deeds 3 PERMTTED ACTVTY/USE GROVES for herself, her heirs or assigns, hereby covenants and agree that the use, occupancy and/or development of the Tax Map 55 Lot 85 will, in addition to other applicable provisions of

11 law, ordinance or regulation, be used for residential purposes with customary accessory structures and uses only and developed only in accordance with the applicable codes and ordinances of the Town of Yarmouth This shall not preclude GROVES, her heirs or assigns from seeking and receiving approvals from the Town land use boards or officials as may be required from using and developing the property in the future consistent with such approvals, provided such use or development is consistent with the ordinances applicable at the time such approvals are sought 4 TERM The term of this Agreement shall begin upon execution and shall continue in perpetuity or until terminated or modified by the parties hereto, their successors or assigns a) Upon the termination of this Agreement, all lawfully existing development on the LOT may continue as an existing nonconforming structure under the laws and regulations then in effect, but may not be enlarged, increased or extended except as provided generally for nonconforming structures at that time 5 BREACHES AND ENFORCEMENT a) GROVES hereby agrees that the above stated restrictions, provisions, conditions, covenants and agreements, including all conditions of approval and restrictions incorporated herein by attachment or reference, are made an essential part of this Agreement, shall run with the subject LOT shall bind GROVES, her heirs and assigns, in ownership to or of said LOT or any part thereof or any interest therein, and any party in possession or occupancy of said LOT or any part thereof, and shall inure to the benefit of, and be enforceable by, the TOWN, by and through its duly authorized representatives b) GROVES hereby agrees that if she, or any person claiming under or through her, shall at any time materially violate or attempt to materially violate, or shall omit to perform or observe any one or more of the foregoing restrictions, provisions, conditions, covenants, and agreements, the TOWN shall have, without limitation, the following remedies, which may be exercised by the TOWN: 1 The Town of Yarmouth shall have the right to institute any and all actions or proceedings, including the right to enforce all the terms and provisions of this Agreement by injunction, legal and equitable actions and all other lawful process for the enforcement of the same 2 No penalties shall be assessed against GROVES after GROVES has transferred all right and interest in the LOT, provided that all conditions which are construed to constitute a violation arose after the transfer or sale of the LOT to a successor This provision shall not be deemed to waive any condition of approval or rights of enforcement against such subsequent owner nor shall this be construed to relieve GROVES of her obligations with respect to any violation of the Agreement that occurred prior to GROVES transfer or sale of the LOT, regardless of when such default, omission, or breach is first discovered c) The failure of the Town of Yarmouth to object to any violation, however long

12 continued, or to enforce any restrictions, provisions, conditions, covenant, or agreement contained in this Agreement shall in no event be deemed a waiver of the right to do so thereafter as to the same breach or violation or as to any breach or violation occurring prior or subsequent thereto 6 FUTURE EXERCSE OF LEGSLATVE ACTON The parties hereto hereby agree that nothing in this Agreement shall be construed so as to preclude the future exercise of the Town of Yarmouth's legislative authority relative to the zoning of the subject LOT n the event that the zoning of said Lot is changed by the Town Council, the contracted use outlined above, subject to the restrictions, provisions, conditions, covenants, and agreements contained in this Agreement, shall be allowed to continue as a nonconformity or nonconforming use, whichever the case may be, in accordance with the provisions of the Zoning Ordinances may be in effect at the time of said zone change governing the same 7 WAVER OF CHALLENGE The parties hereto agree, for themselves, their successors and assigns, to waive any and all rights to challenge the validity of Town Council Order No taken, 215 authorizing this Agreement or the terms of this Agreement 8 SEVERABLTY The parties hereto hereby agree that if one of the restrictions, provisions, conditions, covenants, and agreements, or portions thereof, contained in this Agreement is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such determination shall not affect the validity of the remaining portion hereof 9 APPLCABLTY OF ORDNANCES Except as expressly modified herein, the use and occupancy of the subject LOT shall be governed by and comply with the provisions of the Zoning Ordinance of the Town of Yarmouth and any applicable amendments thereto or replacement thereof 1 MODFCATONS OF PLANS AND AGREEMENT This Agreement shall not be amended except with the written approval of the Town of Yarmouth, except that minor changes to the Plans which have been approved by the Yarmouth Director of Planning and Development and the Code Enforcement Officer shall not be treated as an amendment hereof and shall not require further consent of the Town of Yarmouth 11 TRANSFER AND ASSGNMENT Notwithstanding GROVES assignment or nonassignment of this Agreement to any future buyer or transferee of the LOT, this Agreement shall automatically run with the title to the LOT, and shall be fully binding upon all heirs and assigns of GROVES in ownership of all or any portion of the LOT

13 N WTNESS WHEREOF, this Agreement has been executed and delivered as of the day and year first above written Witness BY: Paula V Groves TOWN OF YARMOUTH, MANE Witness BY: NAME: Nathaniel J Tupper ts: Town Manager STATE OF MANE CUMBERLAND COUNTY, ss On, 215 personally appeared before me Paula V Groves in her said capacity, and acknowledged the foregoing to be her free act and deed Before me, STATE OF MANE CUMBERLAND COUNTY, ss Notary Public Printed Name: On, 215, personally appeared before me Nathaniel J Tupper, as Town Manager of the abovenamed Town of Yarmouth, a Maine municipal corporation, in his/her said capacity, and acknowledged the foregoing to be his/her free act and deed and the free act and deed of said Town of Yarmouth Before me, Notary Public Printed Name Attached: Exhibit 1: Plan of Land Seashore Land Company October, 191 (Excerpt) Exhibit 2: Almonte Avenue Tax Map 55 (excerpt)

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15 Exhibit 2 Almonte Avenue Tax Map 55