October 16, 2019
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Appleton rules house cannot be built on lot

APPLETON, Maine — The owner of a lot that has been at the center of a seven-year legal battle said Wednesday he realizes now he will not be able to build on the property.

Jacob Boyington made his comments following a Tuesday night vote by the Appleton Board of Appeals to grant an appeal by his neighbors, who challenged the latest building permit issued to him by the town code enforcement officer.

The board ruled that the house would not meet the town’s required 25-foot setback from the road right of way, Board Chair Stanley Millay said Wednesday. The issue boiled down to whether Searsmont Road, also known as Route 131, was a four-rod-wide road rather than a three-rod-wide road as a survey done for Boyington stated.

Four rods would signify a right of way over 66 feet of property while three rods would only have a right of way of 49.5 feet.

Boyington said he relied on a survey he commissioned. The board heard from the appellants, who presented information from their own surveyor indicating it is a four-rod road. After looking at the information provided by both, the board determined the wider right of way was accurate.

With the board’s ruling, Boyington said Wednesday morning that he does not believe he can build on the lot. He said it was unfortunate that he had invested all this money to find out that the survey he had been using was in error.

“I paid for a survey and trusted it,” he said.

The property owner said he can still use the lot and may store his construction vehicles and equipment on the lot.

The board’s decision was based upon facts and dimensions provided in public records, according to Patrick Mellor, who represented Boyington’s neighbors Paul and Rita Gagnon, who challenged the permit.

“If the town’s ordinance is a rule for all, then surely it is a rule for one,” Mellor said about the importance of the decision.

Last July, Boyington moved a two-story house from the property because the structure was found by a Knox County court justice to have been erected in violation of town zoning laws. Specifically, the 24-by-32-foot building was not far enough from the road, and Boyington could not reposition it anywhere on the 0.18-acre lot to satisfy the zoning requirements. He had been granted a permit by the town, but the court ruled the permit was issued in error.

But then Boyington reapplied and received a building permit on March 1 from the town’s code enforcement officer for construction of a 12-by-32-foot, two-story house on the same lot.

The Gagnons filed an appeal with the town, claiming for one that the permit should not have been issued because Boyington had not yet removed the entire nonconforming structure as ordered by the court in the previous case. While the house was removed, the slab on which it sat remains on the site. The Gagnons also argued that the code officer did not accurately measure the required setback from the road for the new house.

Code Officer Toupie Rooney had said earlier this month that the setback was determined using a survey done by a professional surveyor hired by Boyington.

The saga of the house began in 2009, when Boyington purchased the tax-acquired lot from the town through a public bid process. The next year, Boyington, through his company Appleton Ridge Construction LLC, obtained a building permit from the town to construct a two-bedroom rental house.

The abutting neighbors — including the Gagnons — challenged the permit, arguing that under local ordinances the lot was too small for the building and that the structure would be too close to the road. The house was 15 feet from the side of the road, while the town ordinance required 25 feet.

A land use case by the town against Appleton Ridge is pending in Knox County Unified Court. The case could be heard in court next month in a jury-waived trial that is expected to take up to six hours.

The trial will determine what sanctions, if any, should be imposed on Boyington for the original violation.

 



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