Subway property does not require variance

By Lisa Williams Ackley

Staff Writer

FRYEBURG — Even though petitioners gathered over 200 signatures saying they do not want to see a proposed Subway sandwich shop built upon the former NAPA lot on Main Street — that didn't matter, legally, Friday night.

The Fryeburg Board of Appeals determined, in less than 30 minutes on May 4, that no variance is required for what is legally deemed a grandfathered "nonconforming lot" where the proposed Subway restaurant would be constructed.

The Appeals Board members said they and the town attorney further believe that there appears to be a typographical error in Section 4 of the Fryeburg Land Use Ordinance that last month prompted the Fryeburg Planning Board to direct the lot frontage issue to go before the Board of Appeals.

The application submitted by Loren Goodridge stated the property, which is the former site of a NAPA Auto Supply store, that burned down, has less than 90 feet of lot frontage (89.64 feet) on Main Street — the Fryeburg Land Use Ordinance requires a minimum of 100 feet of street frontage.

However, in making her motion, appeals board member Kimberly Clark stated, "I am making a motion that the Board of Appeals determines that the applicant does not need to apply for a variance as the lot in question is a non-conforming lot of record. As a nonconforming lot, the property has a grandfathered exemption from seeking a variance for lot frontage under Section 4 of the (Land Use) Ordinance. Therefore, I move that the Board of Appeals unanimously agrees not to vote on the variance so as not to set a precedent that variances of frontage requirements are needed by nonconforming lots, which are intended to be exempt from such requirements under the Ordinance."

"The Planning Board has made a determination (at their April 22 meeting) that the provisions of Section 4 (C) (4)(a), do not authorize the use of a lawfully nonconforming lot that is deficient in street frontage without obtaining a variance," Town Attorney Robert S. Hark said, in his May 4 letter to Fryeburg Code Enforcement Officer Katie Haley. "The specific language of Section 4 (C)(4)(a) makes reference to lots that conform except as to, '...lot area, lot width and shore frontage...' An argument has been made that the phrase shore frontage is an obvious typographical error in the ordinance, and that the intended language was lot frontage."

Attorney Hark went on to say, "I certainly understand the conclusion reached by the Planning Board here. They are applying the literal, specific language that appears in Section 4 (C)(4)(a) of the ordinance. I can also understand the argument that the language as written does not appear to make sense in the overall scheme of the ordinance."

Hark said further, "The purpose of the nonconformance provisions in Section 4 of the Ordinance is set forth in Subsection 4(A), which is that '...nonconforming conditions that legally existed before the effective date of the ordinance...are allowed to continue, subject to the requirements set forth in Section 4...(Sub)Section 4 pertains to nonconforming lots, both developed and undeveloped."

Clark said, "What I am concerned about is the grandfathered rights of every property owner in Fryeburg who owns a lot that has less than 100 feet of frontage. This includes several people who are opposed to the project at hand. The Ordinance is meant to protect grandfathered property rights. If the Board of Appeals votes on this issue then we could be setting a precedent that could negatively affect the property values of all of the properties in town, as part of that value is being able to sell the grandfathered right to have a legally nonconforming lot."

Board of Appeals Chairman Angelo Milia told the approximately 25 people present that he had read the legal opinion received from Hark and agreed with it.

"On the other hand, my sentiment goes out to" opponents of the proposed 1,800-square-foot restaurant, said Milia. "I have major concerns on other issues" regarding the proposed restaurant project.

Patty Heath, one of the 207 "Concerned Citizens of Fryeburg" petition signers, spoke at the May 4 Board of Appeals meeting. Believing the Board of Appeals could have helped their cause in opposing the proposed Subway restaurant, Heath said, "In short, you are our last stand against fast food franchises and the commercialization of our small town. We implore you to say NO to Subway's request for a variance and say YES to the quaint American Main Street that we love."

The typographical error that caused the appeals board meeting to be held in the first place can be corrected by a vote at a town meeting, Atty. Hark advised.

The Subway project is expected to go before the Fryeburg Planning Board, at its next meeting on May 22.

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