South Portland Appeals Board Grants Variance for 199 Margaret Street Addition

[0:07] Chair (presiding officer): It started. I'm officially calling the South Portland Board of Appeals meeting to order. This is September 28th, 2026, 6 p.m. here in City Hall Council Chambers. Those who wish to say the Pledge of Allegiance are invited to do so now. United States of America, and to the Republic, one nation, under God, just for all. Great. We will do roll call. Corey McKenna. Present. Michael O'Flynn. Hi, nice to meet you. We have Corporation Council with us today. Great. Lisa Vickers and Nicole. I'm sorry, I can't read your last name. Reagan. Thank you. Alan Priest. Present. Nicholas is here for the city. Chelsea's taking notes. Great, we have a quorum. Next on the list is approval of the March 2026 meeting minutes. Does anyone on the board have any comments or questions about the minutes that were distributed? Hearing none, I will invite a motion to approve the minutes, a second, and a vote. All who approve the March 2026 meeting minutes can raise their hand. The minutes are approved, so noted. The South Portland Board of Appeals is hearing this appeal based on zoning ordinance section 27 dash 152 B, which determines our jurisdiction to hear this appeal. It's a practical difficulty variance. Do any board members have any conflicts of interest or any other matters requiring disclosure? Hearing none, we will move on. The applicant has determined their standing by providing a deed to the property to this board, and I will open the public hearing and invite first Nicholas from the city to make any comments he'd like on the application. There's really no comments for me to make. [2:55] City staff / planning representative: They basically are looking to expand the existing structure, which is a non-conforming structure due to its, due to its proximity within the setback. So they're here requesting a dimensional variance in order to vertically enlarge the structure. I believe it's a 15 foot, it's a 20 foot setback fact, they're only 15 feet from the property line. They want to go vertical. The ordinance does not allow a vertical enlargement unless it's only a dormer, and the definition of a dormer includes the fact that it cannot raise the height of the structure, which their plans do at this time. [3:35] Chair (presiding officer): I also should officially read that we are hearing application A 26-1403, Katherine McCall and Cullen Cogburn, owners of 199 Margaret Street, are requesting a dimensional variance request for a reduction in the front and side setbacks to allow for a vertical enlargement to increase the living area of their existing single-family dwelling. I would like to invite the applicants to come make the pitch. Good. [4:08] Colin Cogburn (applicant): Evening, and thank you for giving us the opportunity to speak tonight. My name is Colin Cogburn. My wife is Katie McCall, and our son is Emerson, and we're expecting a second son in March, and we live at 199 Margaret Street. We bought our home from a close friend in an off-market sale after looking for a house on and off for nearly three years. For a long time we never thought we could afford to live in the neighborhood that we currently live in, so we were so excited that and felt extremely lucky when the opportunity THE STAIRS WERE LIMITED TO MAKE THE STAIRS SAFER AND CREATE ENOUGH HEAD ROOM TO MAKE THE SECOND FLOOR FUNCTIONABLE. THE EXISTING RIDGE IS VERY LOW AND BECAUSE THE STAIRS ARE POSITIONED TOWARD THE BACK OF THE HOUSE, THE AVAILABLE HEAD ROOM BECOMES EXTREMELY LIMITED AND UNSAFE AT THE TOP OF THE STAIRS. CURRENTLY THERE'S ONLY ABOUT THREE FEET, NOT ONLY ABOUT, THERE IS ONLY THREE FEET, 11 INCHES OF HEAD ROOM FROM THE landing of the top of the stairs to the ceiling, and even at the center of the upstairs the maximum height is only six feet nine inches with the ceiling quickly sloping down on both sides. After speaking with many builders we put down a deposit with one and met with their structural engineer who informed us that a dormer is not a feasible option because it would not raise the ceiling. Enough to be code compliant both in the upstairs bedrooms or stairs themselves. In order to create safe, code-compliant stairs and usable bedrooms, we need to make changes to the existing structure. Unfortunately, because our house already extends approximately five feet into the front setback and about five inches into the side setback, we cannot make those changes without a variance. We understand the purpose of zoning requirements, and we're not asking to make these changes simply because they would be more convenient or desirable for us. We are asking for relief because of the unique constraints of this particular house, it's unusually low ridge, the location of the stairs, and the existing setbacks, and because of those constraints make it impossible for us to address the safety and code issues upstairs within the existing envelope. Without these changes, we will have to look for a new house. That is something we truly hope we can avoid, since we've built a life here and become a part of the community. Thank you for taking the time to hear our case and consider our request. We sincerely hope we can make the necessary improvements to our home and continue raising our family at 199 Margaret Street in the neighborhood we have come to love. Hi [6:55] Katie McCall (applicant): I'm Katie McCall, also living at 199 Margaret Street. Thank you all for being here and taking the time to hear our stories or case, whatever it is. Our neighbors have come here and I was wondering if it would be okay if they speak before I go through the eight criteria, just because they all have like houses, kids, families to get back to. I was wondering if that would be formidable in the [7:23] Chair (presiding officer): discretion of the chair. Absolutely happy to hear from those people first. Straight anyone [7:37] Kevin Lomagino (neighbor, public commenter): Hi. I'm Kevin Lomagino. I live at 195 Margaret Street, so next door to Katie and Cullen. I'm here with Erin Dukeshire, my wife, and my son Landon. Let's see, I've lived there for 25 years. Most of the time during that period, the house has been vacant. It was in very poor condition. I don't know if the, you know, poor condition contributed to it being vacant, you know, not able to be rented or whatever. But the fact that they've moved in and want to improve the property, I feel like is a tremendous positive. I've seen the plans. I don't have any objection. I've been inside the house. I've seen the issues that they're dealing with. It's going to be very difficult for any family of their size to live there, so you know, just the fact that they've been great neighbors and want to continue to improve the property and make the community better, I feel like is a good thing, and I support that. So I'm fully on board with their plans and hope you'll consider granting the variance. I [8:54] Speaker H (unidentified): would I would just add that as a [8:55] Chair (presiding officer): a not tall person. I am unable to stand up walking up their stairs, which has really surprised me, and that as somebody who grew up in a perhaps smaller [9:03] Kevin Lomagino (neighbor, public commenter): cape with more people, [9:09] Katie McCall (applicant): we've made it work, and it's hard [9:11] Speaker H (unidentified): to imagine how they could make this work and continue to be the neighbors that we're [9:15] Colin Cogburn (applicant): So glad are next door without doing this project. [9:25] David Andreessen (neighbor, public commenter): I'm David Andreessen. I live directly across 199 Margaret on Margaret Street, and we live on 202 Margaret Street. We've lived there for 26 years, so I'd be happy by a year. And I did know the previous owner prior to them moving to another place, and he is right, it did fall into disrepair. And it needs repair now, too. The biggest issue, from my perspective, according to the plans, is the height. And we have houses on either side that are full two-story buildings. Our house was redone in the 80s before we moved in. It was a ranch and they made it into a colonial, so that is a full two-story view. I understand the purpose of the ordinance in place. It's in place for Willard Beach, for Lovett's Field. And I understand fully about raising the elevation and blocking views for other neighbors. That is not the case here. All the houses are, well, except for the one on the corner, which is a rental. That's one story. All the rest are full two-story buildings, so I really ask this board to really consider this variance, because from my perspective, the Lomagino's and I think most the neighbors that I've talked with are fine with the variance being installed. And the other point that I'd like to make is that, you know, this makes the house livable. If they move out, the next owner is going to have the same issue. So with that, I'll close. [11:27] Althea Turner (neighbor, public commenter): Hi, my name is Althea Turner. I have not lived in my property for 26 years. I moved in a year ago and bought 194 Margaret Street, so I am a resident of South Portland and I am also an employee at the city. I work for South Portland High School, and I just wanted to share that these are my best friends. They're family to me. I have been fortunate enough to get to move across the street from people who are family for me. And I think that's everyone's dream. So selfishly, I really want them to stay. I get to be around their son. I get to be around the two of them. And that is just incredibly supportive for me as a person. Beyond that, I really care about this family. And I know that they would have to move if this variance is not approved. And I know that with a new board coming in March, that would be really, hard timing, and it would also be devastating for all of us on the street who have all showed up here. I think it's pretty cool to see this many neighbors show up to a board meeting. I know board meetings are not the most popular place to be, and I hope you guys can see that 's a testament to how much we care for this family and also for the neighborhood. And to speak on that, my house was a cape, and then it was turned into a salt box, I believe, Katie. Katie. But it is also a two-story home. It is safe for me to live in. And it has also been safe for Emerson to climb up the stairs many times. When I'm at Katie and Colin's house, I'm not able to take Emerson up the stairs at all. It's not safe for him to climb, let alone me. I'm very afraid of those stairs. And so it's really not a livable space for them right now, nor will it be for their growing family. So I also really understand the purpose of the ordinance. I come from Silicon Valley where people build mega mansions all the time and block people's views. I really concur with Dave that this is not the case here. This is just making a house more livable and turning it into something that fits completely in the neighborhood that already exists. Thank you. [13:37] Katie McCall (applicant): Okay. So I have a few extra documents if they feel necessary. The application is not a small thing and then the like this survey boundary survey and the structural design and the design plans are all quite small so I have like three coffees that are slightly bigger of those if you would like me to bring them or we can wait to see if you would like them later. Yeah, let's wait to see. Okay. Okay, I'm also pregnant and emotional so if I get emotional or have to like go to the bathroom. Just there. Okay. So going over the eight criteria, the strict application, is that right? Is this what I've been asked to do? Yes. Okay. The strict application of the ordinance to the property precludes the ability of the applicant to pursue a use permitted in the zone district in which the property is located. So the strict application of the ordinance 27-303A4 precludes us from pursuing the permitted residential use of the property in its existing structure. We're a single family of three, soon to be four, in March, and we're looking to make our residential home safe and comfortable for us. The strict ordinance to the property precludes us from doing that. I think that is kind of what I'm supposed to say there, but I could be wrong, so just let me know if I need to clarify. Verify also if you have questions as I go, I'm happy to address. Yeah, that's actually a great [15:10] Chair (presiding officer): point we can ask questions throughout the discussion period here. Okay, the strict [15:17] Katie McCall (applicant): Application of the ordinance to the property results in significant economic injury to the applicant, so the requested variance would allow us to bring our existing two-story home into compliance with the applicable and code requirement, applicable code requirements, while also creating additional living space for our family. Without the variance, we cannot do the proposed project. As shown in exhibit 9, we worked with our designer to identify options that would keep us within the setback requirements. However, those designs are not feasible and would result in economic, significant economic injury as described in that exhibit. So we went to our designer when we kind of knew these setback issues were, or when we found out the setbacks were an issue, and asked for like, is there a way to stay within the setbacks and do our project, and it would cost us basically a hundred and forty thousand more dollars to do so, because you're having to, let's see how to describe this in the best way possible, the ridge line, if it's not extending to like wall to wall and you're bringing the ridgeline in at all, you're putting LBL pipes and posts down each floor. So each post that would need to then like, whatever. I can go into more detail if I need to. But basically, it's not feasible, because then it would create posts in each floor, like in living space. So you'd have like a post in the middle of our living room, a post in the middle of the dining room. It just creates a non-functional home. And then the significant economic injury of that is quite substantial. We wouldn't do it, no hypothetical homeowner would do that. Furthermore, the condition of the stairs as is presents a significant economic injury if someone falls, which will eventually happen if this is not addressed, and we are not willing to take that risk. As a result, if the variance is denied, we'd be forced to abandon the project, sell our property, and the significant economic injury we would suffer as a direct result of that for sale is detailed in the application. I forget exactly where it is, but I can find it if I need to. It's page 5. Page 5, thank you. And would be about $190,000. We bought it at a lower interest rate, we bought it off-market, selling, buying, the total of that would be as such. The need for the variance is due to the unique circumstances of the property and not the general condition of the neighborhood. The property presents a physical constraint that is not the general condition of the neighborhood. There are more specific details to our lot that I'm happy to share if you would like, but the most important information is that every house on this street sits about where ours does from the road, and almost all the houses are quite close to the others, so this is not a unique circumstance. Many houses in the neighborhood, if they were trying to go up, would run into the same issue that we're running into. The granting of the variance will not produce undesirable change in the character of the neighborhood and will not unreasonably, detrimentally affect the use or market value of the abutting properties. The proposed work will not produce any undesirable change in the character of the neighborhood, as there will be no enlargement to the property's footprint. Furthermore, although the style of the house will be changing from a cape to a saltbox, saltboxes are very common. a salt box is just like the roof doesn't go like this it goes like that and so those are common in the neighborhood and my friend who lives directly across the street at 194 has this style so it would very much match exactly what's around us the neighboring house on the side of the property that would be the most impacted because we are close to that property actually sits closer to the property like line where than we are and their house will remain taller than ours is They are also a supporter of this proposed project. We have their letter of support. It's her birthday, so she just didn't necessarily want to spend it here. No offense, but it was understandable. The practical difficulty is not the result of action taken by the applicant or the prior owner. The footprint encroachments into the side and front backs already exist. We're not creating them. We're not enlarging them. We're not proposing any changes to the footprint at all. The issues of our unsafe stairs and unusable substandard second floor space are product of the home's existing design and roof pitch. These were fixed in 1945 when the house was built and were of different code and safety expectations. No other feasible alternative is available to the applicant. This is a long one because I have watched many board meetings and I know it is one that you guys really kind of that it's hard, so bear with me, okay? No other alternative design can be feasibly solved. Sorry, no other alternative design can feasibly solve the practical difficulty created by the unique circumstances of our house. That was built 81 years ago. It was built in a location that the builders and the city almost certainly but mistakenly believed was in the prescribed buildable lot since the ordinance in 1941 was the same setbacks as they are today. We first we did not decide to raise the ridge line as a first resort. We asked our design and building professionals to first explore adding a dormer to the rear of the home. This would be would have been a smaller project that would have not required raising the ridge line at all. That alternative proved to be impossible, not merely undesirable. The current ridge height will not accommodate up to code bedrooms or a bathroom. A dormer, moreover, would have not addressed the substandard stairway, which you've heard a lot about, which independently requires correction regardless of what is done to the upstairs rooms. Having ruled out the one alternative that might have avoided any increase in the roof height, our professionals concluded in their own words that the proposed design minimizes impact within the setbacks to the greatest extent practical. The ridgeline can't be changed without also changing the part of the roof that falls within the setbacks. We went back to our designer, as I mentioned before, after learning the setbacks, tried to see if there was a solution where we didn't touch the area in the setbacks, and the builder did renderings, or the designer did renderings, as you can see in exhibit 9, and then states neither alternative represents a feasible means of accommodating the proposed addition condition while maintaining the required setbacks. The variance is the only feasible alternative under the interpretation of the word feasible as the requirement was interpreted by the Superior Court in the 2008 decision in White Bird v. the City of South Portland. My dad and attorney will kind of explore that in further detail after. For us, this is not an abstract inquiry. Our son, Emerson, cannot safely use those stairs. Stairs. We cannot safely use those stairs. You can see an exhibit for my husband going up and down the stairs. I did not ask him to act. This is like really how this is. Also, when someone visits the house, like we tell everyone, when you go up, put your hand on the roof so like you know when it's like safe to stand up and almost every person still hits their head. I've hit my head even knowing and so is Cullen. Also when you're going down the stairs we have a child gate at the bottom which is very much required and it's scary going down the stairs. My husband and I have almost fallen both of us on multiple occasions and it's just not safe. So there's no feasible alternative that allows our family to use it as a two-story code compliant residence that we bought it to become. As a practical matter, if the variance is denied, we'll have to move at the financial loss that I had mentioned earlier. The granting of the variance will not unreasonably affect the natural environment. The proposed work is confined entirely to the existing building footprint, involves no change in lot coverage, no change in impervious surface, and no site disturbance beyond what a roofline renovation ordinarily requires. Fires and the property is not near any shoreline zone or just any questions now or my dad come it [23:58] Chair (presiding officer): Looks like we're going to keep going okay thank you yeah good [24:21] Ed McCall (attorney, applicant's father): Evening my name is Ed McCall I'm an attorney in Portland and I live in Cape Elizabeth Katie and Katie's my daughter they're hoping to create the circumstance that Katie was lucky to have her mom and I took Emerson, bought the house Katie grew up in 83. Katie was born in 91. Her brother was born in 89. They lived in that house all the way through the school system in Cape. They're trying to create a home in South Portland where Emerson and his little brother can live all the way through the South Portland school system. And they should be able to do it. It. Initially, I wanted to just comment on a couple things that have been said to clarify that. I appreciate Nick's comments. He's been very helpful with Katie and Colin and also with me, as has the city's planner. And describing this as going up vertically, there is no horizontal enlargement. So in that sense, all of the enlargement is vertical, but it's useful to keep in mind that inside the front setback, it's it's not going up vertically, it's going up at it at an angle inside the existing building footprint, and all of the new living space is inside the building envelope created by the codes and the setbacks. So there's no new living space in the first five feet off of the off of the row off of the plot line, and there's no new living space. There's a problem because on the north side of the house, the house apparently is five inches too close to Ms. Calendar's house sideline, and house her house is also too close to the sideline, but on the on the on the south side, I'm trying the south side, they're five inches too close. So they have two setback issues. All of the living space they're trying to create is outside is outside the setbacks, so the roof would get steeper in the front so that it could reach the new peak, but it but it wouldn't create living space in that first five feet and there would be some more wall on the on the south side of the house, Miss Calendar's side, and she wrote really the best letter, by the way, of the neighbors, because she is an architect and explained that this is this is the reason that the practical difficult variance experience exists. But what would get added on this south side of the house would just be some additional wall, no living space. So the peak would be a little bit higher, about three feet. The front roof would have to be steeper, not to create living space inside the setback, but just to have a single plane getting from the existing front wall to that higher peak. And then the additional space is in the back, and you just roll through some of the photographs, the plans in the application. So that's looking at the design from essentially really right there. You're in Ms. Callender's home looking out her northerly window. That back deck is already there. The house is larger on the north side of the house. Downstairs is a kitchen now, and there's nothing upstairs. And upstairs, just in the main original part of the house, there's two very narrow rooms that are 6 feet 9 inches tall, only in their center for 3 1⁄2 feet. Then the roof slopes down, or the ceiling slopes down, at the same pitch as the roof. And now it would be steeper, but not creating living space, just to get to the peak. In the back, it would be flatter. But all of that space, all that living space that's created upstairs, is inside the existing setbacks. So this has minimized the changes that are being requested to the absolute greatest extent possible to have safe stairs and usable upstairs rooms. And I've hit my head in the house several times a week. I've only been upstairs maybe four or five times in the years since they bought the house, which Katie was expecting when they bought it. And Emerson is two years and almost four months. So they've had about three years. I've only been upstairs two or three times, really just to look at it. And they're paying finished property taxes on 300 and some finished feet upstairs. They just have a relatively nice attic upstairs. That's what they have, because it's got drywall and floors. Floors, but you can't use it. Katie said the problem with the front setback isn't unique, and she misspoke. It is unique. It's not unique that the house is not 20 feet from the lot line as the word lot line is usually understood or from the right-of-way it 's unique in that this house unlike all the other houses on the street as you've heard has a relatively flat shallow pitch roof so the other capes on the house have been able to convert the salt box you heard an example of the salt box you heard about this evening, that is a conversion. We looked at the current owner, didn't do it. But a prior owner did. We looked at the file. And that qualified as being a dormer because that house just happened to have a steeper roof pitch before it was renovated into a salt box. So it could be made a salt box by calling it a dormer. That can't be done in Katie and Colin's house because the roof pitch is relatively flat. So if you raise it here, you're still at the high point, only have a six foot nine inch ceiling getting lower all the way back. So you have some shedding of rain and snow. So it just, what could be done across the street couldn't be done at their house. And so that's the thing that's unique about their house. It's the combination of being inside the 20-foot setback and having such a flat-shaped roof that you can't make the saltbox addition or any other two-story addition without raising the peak a few feet, and there is the rub. Any other house that was initially a cape but had a more traditional cape shaped roof could turn itself into a salt box and become a two-story house, at least for the back two-thirds to three quarters of the house. This one, that can't be done without a practical difficulty variance. Katie mentioned that the legal issues, and we have done a lot of work investigating what's happened with practical difficulty variances in South Portland and in other municipalities in Maine. I have a supplemental memo that I'd like to offer addressing those legal issues, 10 copies. I also have an affidavit that Katie and Cullen executed that addresses the facts of what they presented tonight and also their investigation. Katie said she's listened to a lot of meetings. There can't be anybody on the planet who's listened to more Board of Appeals meetings than the city of South Portland, Katie McCollum. And what we asked the clerk, under the freedom of access law, for the minutes. So now we have all the minutes from 2002 until whatever was your last meeting. So we've done a lot of work on trying to figure out what happened. So I could offer you this affirmation. I don't need the extra copies, thank you. Because the history is that the city of South Portland was the leader in trying to get a practical approach to area variances, setback issues, lot coverage issues, those kind of issues, as opposed to use issues. And the standard for variances in Maine was the undue hardship standard that you apply in other cases, and there was a movement in the legislature, but with the city of South Portland really being an outspoken proponent of having an easier standard for this kind of problem, for where you, where you have a, you can't meet the setback, we have a lot coverage issue, but you're not changing the use, you're not trying to jam a commercial establishment on the Market Street, a Mark, Margaret Street. So the legislature adopted a practical difficulty variance ordinance that could be approved that could be established for residences the city of south portland didn't initially adopt it i don't know why i assume they just can get around to it in the meantime in the in the case of roe versus the city of south port south portland the pl this board in the 1990s had granted a variance under the undue hardship test and the city really and the neighbor objected and they took them at the court went all the way to the state supreme court that case is in the training Materials that have been provided to the board as standing for the proposition, which it does, that there wasn't an undue hardship. But the decision, which I have, and I'll give everybody a copy of it, stands for a different important proposition. The city said, Supreme Court, let us have a more practical approach for this kind of variance. And the Supreme Court said, we can't. The legislature passed a law saying the city council can adopt a practical difficulty area variance and your city council didn't do it go back to the you can go back to the city council they can do it but we can't we can't put ourselves in the shoes of the city council and so shortly thereafter the city council did adopt the practical difficulty variance ordinance and in the early years and this is It's summarized in Katie and Colin's affidavit. First year we have minutes for, it was 2000 and I think it's 2003. If it's 2002, I apologize. In the first year, there were 28 applications for practical difficulty variances, and 26 were granted, two were denied. And that was the approximate rate of grant and denials for quite a while. And then things changed and as far as we've been able to determine there hasn't been any practical difficulty variants granted since 2018 which the small world category was a big sister of Katie's grade school friend growing up but they've all been denied since then and some of them and you know not surprisingly, they weren't this kind of compelling case. But one of the things that's been clear listening to the meetings is that there isn't a clear understanding from the case law that's been relayed, as far as we can tell, to the board of what do these requirements mean. mean. And significantly and importantly, and we think controllingly, the case that discusses what they mean is the case of Wiper versus the city of South Portland. So in, I think it's 2006, while the board was being, well, let me talk a little more about Roe. So I'll give you that But Roe quotes at length from the legislative history of the legislature saying, we have this practical difficulty variance and we intended to be more flexible, less stringent, and applied in a practical way. way. In the Wiper case, Wiper was a neighbor, the folks seeking the variance for the Monahans, and they wanted to do much more extensive than what Katie and Cullen wanted to do. And they went back and they went to court a few times with their neighbors, the Wipers, about whether the adequate findings had been made by the board, whether they had a proper case for a variance. And that when the Monahan's got the variance the Wipers went back to Superior Court. Case was decided by Justice Warren. He's one of the best Superior Court justices, my opinion, in the country, certainly in the state of Maine, and he addressed what all of these criteria mean and found that the board properly gave the Monahan's a practical difficulty area variance over the Wipers' objections. And the Wipers contended that all of the listed criteria weren't met, that there was no practical difficulty, which has two components, that a use is being permitted and that there's not economic injury, nor the other six sub-components weren't being met, including in particular that the Monahans couldn't get by without a variance or with and the Wipers contended or they should have a smaller variance. And on the feasibility issue, that feasibility issue, the Wiper case, which where the city of South Portland won, and I have the brief that the city submitted in that case, very good brief analyzing how the city interpreted these factors and how this board interpreted these factors back then. The city explained and the court found that whether there is a feasible alternative has to take into account not whether something is possible but whether it's practical for this particular applicant. And in the case of the Monty hands in the Wiper case the Wiper said, well, people are living in that single-family house possible to do it's feasible to live in it just the way it is and the court said that's not the issue we have to look at it from the perspective of the wipers of the monahans which was a family of more than four they didn't say how many kids they had but more than two kids and the wiper said well they don't need a garage they could just have less of a variance and not have a garage and the planning board said well that's not feasible for them and then the wiper said well the problem with the lot is it's a long skinny lot it's a long shallow lot they could have a long not deep house that could fit on that house and the city argued and justice warren found that wasn't that wouldn't blend with the neighborhood so and so he expressly said that's part of not feasible right it's possible you could have what looks like a hotel on that lot, but that's not feasible within the meaning of this ordinance. The word feasible has to have a practical interpretation under this ordinance because of the legislative history that's spelled out in detail in Roe and by the legislature and by the overall structure of the ordinance. so I go through all of that because we think it's I've read all of the training materials that are provided to the board I don't know how many of you are lawyers it's a massive amount of material I know Mr. Mazer some from cases in the distant past he must have done a massive pile of work putting together those training materials are very extensive and I applaud him for it But one of the things that's missing from those materials is like the wiper decision. You should have it. And folks who come in front of you probably can't all afford to have a lawyer or don't have a lawyer who's a daddy and don't read all those cases. But this ordinance and the statute that allows it intended a practical, flexible interpretation. interpretation, so one of the key points on what's a significant economic injury, that's a stumbling block often for this board and for other boards. This city's corporation council submitted a brief that quoted the leading treatise of the time to the Superior Court in the Wiper case and explained an excellent argument that hadn't occurred to me initially, that the reason the legislation uses significant economic injury is it means to set up a trade-off proposition. If you're asking for a small adjustment, as Katie and Colin, we respectfully submit, are no new living space inside the setbacks, then you don't need a, then a modest economic injury is significant. If you're saying, hey, I just want to build it right on right by the street, or fill up the lot, or make a substantial deviation, then it would take a big economic injury to be considered significant. So it's expressly a trade-off, and I actually quoted in my in my supplemental memorandum the language from the city's brief in the Wagner case, and it's an excellent argument. It makes perfect sense, because other than that interpretation, it's crazy for the legislature to adopt the standard of a significant economic injury. Why would it be, it's gonna cost you at least $1,000 or at least $5,000, some number, right? I mean, but you're left with the interpretation of, well, what do they mean by significant? And the city was correct that's what they meant by that's what they meant by significant, that as compared to what you're asking for, not getting it is significant. In this case, we think the economic injury to Katie and Colin is significant under any conceivable test. They absolutely are going to have to sell this house if they can't go forward with this project. They have a house that is flat out not safe, they will soon be a family of four. There's not nearly enough space in that house for a family of four, let alone safe space. And if they sell that house, they will have a very substantial loss, broker's commission, which they were able to avoid the first time around, but not this time around, with rates changing, and they'll have to borrow at higher rates this time around, and all the other injuries that they detailed. And then the other injury that qualifies as economic is between now and whenever they're able to sell the house, they're running the risk all the time that somebody gets hurt and is in the hospital. And that's not a small risk. Somebody sooner or later will get hurt going up and down those stairs. The actual rail, I made it sturdier so that it's marginally less dangerous than when they bought the house. But it's a highly, dangerous set of stairs. The problem with bumping your head on the ceiling isn't just that you bump it. You probably can't see that, but not Washington, that to me, not Katie's staircase. But it's that it's that knock-drop balance. And once you're off balance on those stairs they're very steep they're very narrow you're going down those stairs to the bottom no question about it and sooner or later somebody will get hurt using those stairs so I 'd like I'd like to give you because I both for both for my argument in this case but also think the board should have it you're the city's brief in the wiper appeal which is an excellent brief. And then the Supreme Judicial Court's decision in Roe, which said, no, the city can't grant a practical difficulty variance until it adopts the ordinance, but explains that the legislature intends a more flexible, less stringent interpretation of the requirements for that variance. And finally Justice Tom Warren's the decision for the city and for the Monahans in the wiper versus city of South Portland case. So again, that decision in the wiper case from I think it's 2007, but in that time period that's the last word on what these requirements mean. We go through them in detail and pull out the quotes and in our, in our brief that's in the application itself. I think they're very informative. I'd be pleased to answer any questions you have. I would like to just highlight what's in the exhibits that we think really do a good job of laying out the case here. Exhibit 1 and 2 is the deed. Exhibit 2 is the property description part of the deed. Exhibit 3 are photographs of the house. It's on page 12 of the application and the top photograph in particular and really all three give you a pretty good sense of the of how relatively flat that roof is for a cape and that 's the unique problem here it's inside the 20 foot explain the thing about the setback Katie and follow almost certainly I'd say 99.9% certainly own to the center line of Margaret Street. Most people don't know that. Most people figure the city owns Margaret Street. And in a modern subdivision, the city would own Margaret Street. In the 1970s, the Maine legislature changed the presumption and said, when you go to get your subdivision approved, unless you say, I'm the developer, or I plan to keep ownership of the right-of-way or I plan to give it to the abutters, the presumption is you're offering it to the municipality. And if the municipality accepts the roads in an approved subdivision, it ends up being what we call the fee simple owner, the absolute owner of the land underneath, in the right-of-way underneath the street but that's a relatively recent development in the 1970s. Before that, the presumption was if you lay out a subdivision, and this one was laid out in 1891, recorded in the registry in 1892, the presumption is you're offering the land in the right-of-way to the abutters. Because we figure the Mussie family doesn't want to own these roads forever. Somebody's got to own them. That's a traditional rule of property law and we think and the presumption is it's the abutter so Katie and Colin are the owners to the middle of Bargain Street but your but your current ordinance makes clear that land doesn't count for a front yard we think what happened in 1945 is you didn't have that part of the ordinance you had a 20-foot front yard requirement and the city was saying well you don't all over the middle of the road and more than 20 feet is grass so you've got more than 20 feet of front yard. And now you have detailed ordinances that say that part of your yard that's inside a right-of-way doesn't count. So that's the change that happened on the 20-foot combined with this flat roof is the unique combination for their front problem. The side problem exhibit on page 13. So that's a good view of the side problem. You can see there's a fence in the top photograph on page 13. It's the calendar property to the left. It's Katie and Cullen's property to the right. And they're five inches short, and his calendar is more than that short. But their problem is that they're within five inches of the line as the surveyor determined it. I asked the surveyor, could you be wrong about where the line is? He didn't think he could be, but everything is based on an 1891 plan, and nobody's found, as far as we can determine, pins for the 1891 property line. It's a cool development. The Mussie farmhouse used to be down on the water, and 16, a team of six, might be 36, oxen brought it all the way up the cottage road, and the property was that big. It was from the water all the way up the top of the hill. In any event, as far as we know, they're five inches too close that's why they need a variance on the side exhibit four on page 14 those are photographs of colin who's about my height go on navigating those stairs right where the back of his waist is and photograph b that's where it's three feet 11 inches, on page 15, so Colin is standing there in the small center of the rooms upstairs that's three feet and a half wide, where it's six feet nine inches tall, and it slopes off on either side. On the bottom of the page on 15, that's Colin navigating down the stairs in a photograph that's labeled G. It gives you a sense of how steep those stairs are. Cullen's young, he's pretty agile, and I hike a lot, but I'm older than that rail going down those stairs. It's really just harrowing. On page 16, that's the calendar house, and Ms. Calendar couldn't, she's tied up tonight, but she wrote the excellent letter I'll get to in a second. She's an architect and explained that this is the perfect practical difficulty variance. Exhibit B is the soft boss across the street. That's Althea, who spoke tonight's house. And again, that was done with a variance, and the front roof is just steeper to get to a higher pitch without a variance. So they can call that a dormer. Exhibit C on page 17 is to show that skylights are typical, but the skylights aren't inside the setback. Pardon me? It matches the style, but in the wiper case says that matters in terms of whether something else that doesn't match it would be feasible, but they don't need to match the style to get a building permit. Could build something ugly they want to build something that blends and they want to do it that's within their within their budget and this is the practical feasible way to do it. Exhibit 19 and 20, those are renderings they've had done of the house. 21 and 22 are the floor plans, and I think Katie gave you, she has bigger versions of these if anybody wants to be able to see the numbers that it matters to you, we have some bigger versions because we apologize. These exhibits through page 25 are hard to read. Exhibit 8 are the letters from neighbors and Ms. Callender, who couldn't be here, but just by coincidence, she must have mentioned to Katie. My parents got a practical difficulty variance for my house, and so that's discussed in our brief. They made their downstairs bigger because they wanted to be able to age in place so that they could live downstairs eventually, and they wanted a breakfast nook which came closer to the sideline there at the corner of the lot, around the corner of that Sprague Street. On Sprague Street, which that's probably a practical difficulty variance that didn't meet the criteria, even as I would interpret them, but nobody objected, so they had the breakfast nook. But she explains in detail that she's an architect. She's looked at these plans. This is the correct way to make this house safe and livable. And then they have letters from every abutter, including their backyard neighbor who's on a different street, but they wanted to make sure that those folks were approved of the change, and they do. At page 30, these are the designs for how you could theoretically create a second story without building in the first five feet or in the five inches on the side. And as Katie explained, of course, that's massively expensive because you have to have internal structures going all the way down to new footings in the floor because As I understood the architect's letter, I'm sorry, the engineer's letter, which is at page 31, you couldn't even just put the lolly columns on the concrete floor. You'd have to make the concrete floor stronger in those places because it's not designed to be weight-bearing all the way through. Then you would have internal structures through the basement, through the living area in the first floor, and up into the second floor supporting those roofs. And massive amounts of more money and you'd have an incredibly ugly house and nobody would do it. I mean, if it were really important to Bill Gates to have that house and, you know, get with his money, I guess it's a token, but as a practical matter, Bill Gates doesn't want to live on Margaret Street in South Portland. Nobody who would consider buying that house would do any of these things or any of the other ways that would make the house code compliant. Exhibit 10 is the 1941 zoning ordinance. Back then it was handwritten, but the setbacks were the same as they are now. But I'm confident, based on my legal research, that the front setback was measured from the improved road, not from what we would traditionally think of as a lot line, because the true lot line is the middle of the right-of-way. Then exhibit 11 is the calendars that's Miss Calendar's parents getting a practical difficulty variance before we had all the minutes and were able to do all the statistics we ultimately did. The page 37 that's the really neat subdivision plan for, you know, which back in 1892 there was no planning board. It wasn't really this full official that looked at this plan and said, okay. The Mussie family owned all that land and they divided it up the way they divided it up, and they recorded that in the registry, and that creates a subdivision under the laws as they were then. Exhibit 38 is the boundary survey. I believe we have a copy of that. Again, those numbers are, we apologize, very hard to read. Exhibit B on page 39 is Katie's explanation that there was a question in the survey about whether the overhang mattered for purposes of setback variance, and it turns out it doesn't. I think that's the issue there, right? So Nick was helpful there, and then beginning at page 40 is my legal memorandum, which I've outlined it and I've outlined when I wrote it, I didn't have the city's briefs in the wiper case. I had the decision in the wiper case because I could find that online, but I had to have the clerk, it was in cold storage, they got it back from me so I could get copies of the documents and see what the city had said. Same thing with the Roe case, I got the city's brief in the Roe case. case, same lawyer, same corporation counsel, very articulate, arguing that we need a practical difficulty approach, and the Supreme Court saying, that's fine, just ask your city council to adopt the ordinance, which the city council did. And the last point I'll make is that history shows that when we know, because the legislature said what it was trying to do, as detailed in Roe versus City of South Portland, and we know that shortly after the main Supreme Judicial Court said, South Portland, if you want this practical difficulty approach, have your city council pass this ordinance. The legislature approved it. So that's the time period in which the city council did it. Obviously, its mindset was we want to have a practical interpretation. In the Wiper case, the Superior Court said, we have to give all of these requirements a practical interpretation. INTERPRETATION, WE RESPECTFULLY SUBMIT THAT GIVEN THE REQUIREMENTS, GETTING THE REQUIREMENTS, THE PRACTICAL INTERPRETATION, THE CONTROLLING PRECEDENT REQUIRES KATIE AND COLIN PLAINLY MEET ALL OF THE REQUIREMENTS AND GET THE VARIANTS, KATIE, COLIN, OR I WOULD BE PLEASED TO ANSWER ANY QUESTIONS YOU HAVE ABOUT ANY OF THE LEGAL OR FACTUAL ISSUES. WE'VE GOT, AND I JUST WANT TO SAY, WE REALLY APPRECIATE YOUR TIME. I don't do as much municipal stuff as I used to, although I had a bounty brook with Cape and South Portland over the last year trying to save part of Sawyer Street that goes across the marsh near my house in Cape. But I know that what they pay you all to come here tonight and listen to people like me is not what you're worth. And we really appreciate it. People who volunteer to serve on municipal boards, run for office in cities and towns. It's quite a sacrifice. We know that. I don't mean to be critical of anybody if I think you've not had all of the best access to all the materials that would be helpful in interpreting these ordinances. I am endlessly grateful to folks who do what you do. They would have to, well, no, they would just be making a big mistake if they appointed me to any boards. I could not, I could not sit through and listen to people whine about stuff. So thank you very much. We're pleased to answer your questions. Thank you. [1:04:30] Chair (presiding officer): I will open it up to the board for any questions of the applicant or the city. I have something I can start. Great. Jump right in. And anyone can answer this. It's whoever you think is going to be best. I guess we're going to start with Attorney McCull's, the wiper case. I don't necessarily disagree with you. I think your recitation of what happened in that case, accurate, 100%. What kind of, I think the tension for us, or at least me and this board, with that case in our statute. Is Justice Warren very fact-driven on that? Perhaps different results if the applicant didn't have children or was very rich or so on and so forth. So what's the board to do if we adopt your proposed way of thinking about things? If the applicant didn't have children, for example, we might be more inclined to deny the application under these facts or if the applicant, if the applicant was very rich we might be more inclined to deny because we might see that you know economic hardship might be so I mean kind of guess where I'm going is if we go with the wiper philosophy, let's just call it, we're gonna get different results based on people's economic status or family status, and how would we deal with that when we have one applicant that can get it because they do or don't have children or are married or single and have money or don't have money? [1:06:20] Ed McCall (attorney, applicant's father): Well, I think that's a fair concern. I respectfully submit that Justice Warren's decision is controlling precedent. So that's the only case granting a variance or denying one under this ordinance going to Superior Court. [1:06:42] Chair (presiding officer): And to your point, that's why we're kind of stuck in this problem. We have a 2008 case and it's 2026 and we don't have any opinion on it in between there. [1:06:50] Ed McCall (attorney, applicant's father): I actually had a successful appeal on behalf of the next-door neighbor in Scarborough, Mark Curie, who was my partner and lawyer. Lawyer, and there we didn't really contest that his next door neighbor met the criteria. We contended that this thing, the Board of Deals and Scarborough didn't make the required findings. That's what he gave up, so Mark won. But you raise a fair point. I think it's a legislative concern, not properly a concern for the planning board. There obviously would be some forms of discrimination the planning board couldn't engage in. If somebody came in and said, well, I'm opposed because of the race or the ethnicity or the sex of my neighbor, those are obviously impermissible considerations. It's an interesting question about the wealth issue, right? If this were Bill Gates and he said, hey, you know, I want a variance and his next-door neighbor is, you know, whatever. They like the apple. Could the court say, well, this economic injury isn't significant for this applicant? The way that the city argued in Whiteburg that you need to look at the injury to the property and the applicant, which is how the first clause of the ordinance from the statute are identical, is written. So I think it would be reasonable. I think it would be consistent with WIPER for the court to say to a super mega rich property owner, you don't have a significant economic injury here. That'd be an interesting case, and I think you'd have a point. [1:08:46] Chair (presiding officer): No, and that's all fair answers. I mean, you know, going with WIPER is not. [1:08:50] Ed McCall (attorney, applicant's father): I think the outcome would go the other way, because I think if you were asking for this much of a variance, and it's going to cost the neighbors nothing, and I think this all costs the neighbors nothing. If it costs Bill Gates $150,000, you could look at him and say, Bill, while you were standing here, you lost more money in the market than that. I think he'd be right in that circumstance, but I get your point. And I also get the point about the family of four. There's plainly a description by Justice Warren in the Wiper case that they have more than four, and four people can't live in the house they have now. They saw somewhere that it was described as they were forced to rent it out. They were renting it out at the time of that decision. But I think what the city argued for is correct, that we need that when we're deciding whether the economic injury, the economic impact on the property and the property owner is significant, we're balancing what harm are they doing and how badly do they need it relative to the harm that they're doing. I don't know whether I think their ability to absorb an economic pop would be a relevant consideration. I could certainly see an argument saying, hey, we feel badly that you're working at minimum wage, but you are. I don't know of a case that says you have to take that. [1:10:36] Chair (presiding officer): On the economic stuff, but I commend you very interesting argument at least in my six or seven years here I haven't heard the argument that's essentially of you know how much this is gonna cost for us to relocate a very simplified version of your argument is that really you know an economic harm to the applicant because they're not like experiencing something like in the traditional case of you know I'm I'm renting it out for a low market rate, and I'm losing money because my mortgage is higher than the rent I'm receiving. That one we all understand, or at least I think we all understand. On these ones where, and it's very practical consideration, I mean, anyone in your position would be tallying up these numbers and getting to the hundred-something thousand dollar figure. figure. But if we start doing that as an analysis or as a practice here, almost everyone's going to have an economic injury under that standard, at least where we are now with interest rates. You know, I'm talking about the present. Of course, it could flip, you know, the other way if rates go down. But point being, you know, everyone before the board would be able to say well this tally of the broker's cost and the refinancing cost and the moving men and all that won't everyone kind of meet that test if that's how we're measuring it so you're [1:12:15] Ed McCall (attorney, applicant's father): Suggesting that being forced to sell your home isn't an economic and I think there's no chance. The legislature didn't think, being in a situation where because, oh my word, the city changed its interpretation of where your yard starts and ends. And in 1945, somebody put the house five inches too close to the sideline. I just want to make common sense adjustments. If I can't make them, I don't have a safe home, I'll have to sell it. Even if you were going to sell it at a profit and buy a nicer home. Losing your home is, I'm an economist, I majored in economics and law school. So there's a difference between economics and finance. They put it in numbers because people think of economics as finance. But losing a home is a very substantial economic harm, and always would be. Now, will people come into your hearings and say,, oh, I don't get the permit to sell my home? Maybe, but I'm careful not to turn myself into a witness. No,. There is a lawyer, but they're going to sell this home. This isn't like, let's make our best case and get this fair against. That house is not livable for a family of four. Those fares are not even close to safe. What they want to do is make it safe, COVID compliant, And if the city says you can't, then they're going to sell. [1:14:01] Chair (presiding officer): And to your point, or someone's point, and maybe it was one of the butters, but whoever's buying it presumably is going to run into the same problem. Unless they're of unusual height or are using it as the glorified attic. It's an attic. [1:14:18] Ed McCall (attorney, applicant's father): I mean, you could, you know, a couple could own that as a single-story house. That's, you know, it could survive that way as, apparently, the existing house that Monty is at and we're renting out. If you rent it out to somebody, you know, it's a young Coast Guard officer working down the street that could rent it. So if it were an undue hardship variance, then we'd be having a real hard argument, right? Because you can get some of it there. You can rent it to somebody. It's a great neighborhood, and somebody would benefit. But we think it definitely meets the practical difficulty variance criteria for those reasons. And as a two story house it's got a nicer than typical hat and the access isn't a lot like in my house that's been elaborated so it's not worse than that. [1:15:29] Chair (presiding officer): And I certainly appreciate oh yes did you have something please. [1:15:32] Ed McCall (attorney, applicant's father): Oh you want to talk. [1:15:34] Katie McCall (applicant): Story of my life, yeah. I became a therapist, so I just have one person that I'm talking to. It's a little easier than my family. The people that we bought the house from is one of my best friends, and they and you know who was the owner prior to them, but they were a couple and they were gonna have a family and wanted more space and didn't love the neighborhood like we did. They wanted to be kind of out further away from the city, but they wanted more space, and they moved, and when we bought the house Our plan was always to do a dormer so that we could actually live in the second floor. So yeah, it's more than just like we want a bigger house. If we don't get it, we move. We want a house that we can use, and if we can't, we will move. We really don't want to, like, we love our neighbors, but if someone else comes into this house, they will run in. Everyone walking in that house would say we're gonna fix the stairs, we're gonna like, and then they'll find out they can't. So this isn't just like a, you know, we Want some extra living space, give it to us. It really feels more particular than that. [1:16:53] Chair (presiding officer): One, other thing that you might be able to help with, so Attorney McCullough slash dad, yeah. It was, I think he made a very smart correction about the uniqueness, yes, uniqueness, and because essentially all the homes kind of have this setback issue, yeah, but the save might be that your home is shorter, yeah, and height, yeah, then the surrounding homes. Can you tell us more about what the height in that second floor of the homes that are around you, yeah,, of course. [1:17:32] Katie McCall (applicant): So the home directly next to us on the south side is a full two-story home. I think they have an attic as well. The house on the north side, the family with the child, their house is a two story home fully with a small attic, I believe, although I don't know that I checked that, and that [1:17:53] Colin Cogburn (applicant): And that house is 25 feet tall, just for reference. Hours and in would be 23 feet tall. [1:18:00] Chair (presiding officer): What is it now? Is 20,, yeah. Are there any other 20 foot or shorter houses? [1:18:09] Katie McCall (applicant): Yes, so there's one house that's a rental on the corner. If you scroll down, that one. They rent it from their father, maybe? This is a two-story. No, that's a one-story. Okay, are there any two-story? So there's one house. Yes, so there's not under, there's one house that's almost identical to ours across the street diagonally from us. Her stairs are different. We went in to take a look. It's go up the one with the light roof. Yeah, so that's like basically the same house as ours, and she came over and saw our stairs and was like, oh my gosh, this is so much worse than ours, and we went in hers and hers were like wider and kind of more in the middle of the house when you get like a normal cape, when you get to the top of the stairs it's the highest point of the wait is hers the salt box no sorry that's Althea's salt box that is the house that is similar to ours okay that's the similar one that's the salt box the one that Nick has his pointer over got you okay And then the one next to it, the yellow with the brown roof. That is the only house on our street that is a similar situation to ours. [1:19:28] Chair (presiding officer): Got you. Yeah. Okay, so there's really only one that you know of. There's only one. [1:19:33] Katie McCall (applicant): I've, like, truly spent hundreds of hours getting ready for this three hours of my life. You cannot imagine I've watched every meeting since 2018, and that is the only house in the neighborhood that is as short as ours. well [1:19:50] Chair (presiding officer): thank you very much i think you answered what i was wondering okay thank you i'm [1:19:56] Board member: just curious is the house assessed at a two-story house this house yeah the current ours [1:20:03] Katie McCall (applicant): yeah so the person that lives across the street in the house similar to ours she's an assessor so i spoke to her the house is assessed as a two-story because it's a finished upstairs but you cannot assess it for like code compliant bedrooms upstairs so it's just two rooms upstairs because there are stairs and floor and drywall so we pay taxes for like a full two-story house that's really a one-story house with a very lovely kind of not used black [1:20:34] Board member: and is there a code related to ceiling height current code yeah there is if you build new [1:20:39] City staff / planning representative: there are minimum ceiling height usually it's six eight for doorways and then seven feet or i think trying to do math real quick yeah i think it's six eight is your [1:20:54] Katie McCall (applicant): what i looked at and correct me if i'm wrong is seven foot for bedrooms six eight for a bathroom i think but maybe seven feet and the seven feet it has to be seven feet in at least fifty percent of the room where this where the ceiling sloped so we cannot meet that with a dormer we've looked at it extensively and like you would always drop way below that seven foot what's the proposed height the proposed height will be eight feet upstairs you could you couldn't reduce that to meet any sort of No, we can't reduce that to meet any because you have to touch the ridge line. And I can let my dad speak to if I need to more of like my understanding is I that the board doesn't have to say like could you go a foot lower here, could you go five inches is lower there like to, but there's no way we can do it without needing this variance. Yeah, and that [1:21:49] Board member: brings up what question that maybe I have for council, but in looking at this wiper, you know, and I know this has come up in the past, but you know we're not here to like go through exhaustive like alternatives, but we're looking at the question being no feasible alternative to a variance. So I think I get a little hung up on how do we, you know, there's alternatives. I went through this personally on my own where we had a very challenging house, starting a family, same idea, we had a very challenging staircase and we actually relocated the staircase inside. Like I don't want to speak outside or ask questions that are outside the scope of our review, so I guess to stay within consistent with this idea of no feasible alternative to a variance [1:22:31] Chair (presiding officer): like I guess what's, what's the line? Good question, and it's I don't know that I can give you a satisfactory. Yeah, but I think I would encourage the board just to review the application that's before you. It looks like from the materials they presented, they submitted that several alternatives were considered and were determined to be not feasible based on cost and the fact that you have to put structural supports in the home. So there was, there is some evidence of alternatives that were considered And not determined to be feasible. I don't know if any of those, maybe the applicant could speak to your question. Like what about, what about making an improvement to the home that did not require a variance? I guess there's some discussion about the low ceiling height, so you can't just put in a dormer without it, which wouldn't have required a variance. So but maybe the applicant can speak more to the need for a variance. What about solutions that don't involve a variance? Yeah, I guess I [1:23:51] Board member: like I look at just real quick for my question, just to clarify. So I look at your project goal being usable second floor living space and a safe stairway. So understanding that you looked at these alternatives to make usable living space upstairs requires potentially the variance. I guess I saw some other questions related to that, but yeah, the safe stairway, were there alternatives considered that would consider that you would not require that variance? So internal changes like having to relocate a staircase that would allow you to have that. And again, if I'm outside the scope, no, it's okay. I'm [1:24:24] Ed McCall (attorney, applicant's father): just gonna let me down. So like the case, most of my clients have been in this house a fair amount, and I haven't been in the house across the street where the stairways in. This is more centered, but I know that moving this stairway would be massively expensive for a variety of reasons. The stairway down to the basement is of course in the same place. It's just there way up to the second floor. So you'd be moving two stairways. The hallway to the other rooms is immediately adjacent to the stairway, so you'd be moving all a lot of the walls downstairs, and at the end of that you would have, you could have, if you made the stairway less steep, then you'd be taking up even more of the small floor plan of the first floor. You wouldn't be creating any livable space upstairs. You wouldn't have any space upstairs that was code compliant. And so you'd have a tremendous amount of expense not to really end up with a two-story house, but to have somewhat safer stairs. And as a practical matter, that's not practical. What you'd gain is better egress for your finished attic that you'd never live in. Nobody would live in these rooms upstairs. So from a practical perspective, it isn't practical. It isn't feasible the way the word feasible should be interpreted. I happen to have in my car, but because I carried Emerson and I couldn't carry my second briefcase, the biggest dictionary I have from this time period, possible isn't listed as a synonym of feasible, and a dictionary that probable, the words like probable, I don't know that reasonable is there, but that suggests that kind of interpretation. So I understand the question about, hey, could you do some of this without a variance? Theoretically pieces of it could be done. Nobody practically would because you wouldn't pay that kind of money to have a less accommodating floor plan on what's really a one story house just to get easier access to your attic. As I said, my attic is ladder access. Lots of attics are pulled down ladder access. So that the attic access could be improved doesn't address most of the considerations associated with the application that the practical difficulty variance is designed to accommodate. And really, none of the goals would be met because nobody would do it. Nobody would spend, I don't know exactly what the number would be. I can't imagine it's under $100,000 just to have better added access. Are [1:27:56] Chair (presiding officer): there other questions from the board? [1:27:59] Board member: I have a question about the 2002 variances that were granted by the city of South Portland. I think you said there was something along the lines of 25, 26. And looking at those, it seems that a lot of those are granted based on a want instead of a need. In your opinion, is that the practicality that the legislature intended? [1:28:34] Ed McCall (attorney, applicant's father): I think it might be. I think so under this ordinance, what traditionally happened was if what you were proposing generally made sense and your neighbors were okay with it, probably got granted. and I don't think that 's different from what the legislature had in mind, looking at the legislators. The law was amended a few times in the process. First, it was only residences, then it was residences and other structures. There's still a different variance allowed by statute that looks to me the city hasn't adopted that is just residences still. But I think this is in what the legislature had in mind. I spoke at a city council meeting because they were looking at zoning amendments a few weeks ago. But the amendments they're looking at are all responsive to current legislation saying we need more flexible housing rules because we have a housing shortage. And so the planning staff is unbelievably massive amounts of work coming up with more rules for more flexibility. I'm not sure we're going to get more flexibility by having more rules, but we're, we're liberals, we live in the northeast, and it's, we believe in rules. My parents used to live in Texas, and housing hasn't gone up like there like it has here. But whether we should have more rules or less rules, the legislature intended this process to be flexible and to work. And it's a great process when it works reasonable. It puts some more pressure on you guys because some neighbors are going to come in and say, hey, you're voting against my variance. You voted for Mrs. Smith because you like her. You don't like me because my kid, you know, whatever,, and that can be a heavy weight for you all. But I think most of those earlier grants probably appropriate, and you've asked me my opinion, so I'll give you my opinion. I don't think this one's close. I think this is plainly a practical difficulty that warrants practical difficulty variance. I can see to you that if I were on the board, I'd try to be fair even if there wasn't a neighbor showing up saying no. It probably really shouldn't matter, and there are some bullies around who will make sure their neighbors don't show up and say no. So I get the concern, but I don't think this one's close. And I think the earlier, more flexible interpretation is consistent with what the legislature said it meant, what the Supreme Court in Roe said the legislature meant when it authorized this ordinance, and what the city council met when it adopted the ordinance. And I do think this is an easy case,. If anybody disagrees with me, I don't mean to criticize you, but to tell somebody really, you're going to have to move out. When all the neighbors are saying that would be unfair, I think Ms. Callender's letter says she couldn't be here. She's an architect. She says, if this doesn't qualify, we shouldn't have the ordinance. And that's correct. That's what I think. [1:32:40] Board member: Anything else? Just one question, or clarification, and maybe I missed it in the application, but so you're within the setback on the south side and the, what is it, the front? Well, the front and the side. So what you're doing, and maybe Nick, we're no more non-conforming. It's just within the existing non-conformance. [1:33:03] Ed McCall (attorney, applicant's father): That's right. The front roof will just be steeper. Correct, okay. And so there's not new living space in the front five feet. And on the side there'll just be a little bit more wall going up a little bit further that obviously a modern wall will take up more than five inches so we'll be adding some wall opposite the calendar house but no living space. [1:33:31] Board member: No more in the setback is all my question was. [1:33:35] Ed McCall (attorney, applicant's father): No living space inside the setback either front or side. [1:33:38] Board member: Extending yeah exactly right they're staying within that 's right we're not getting [1:33:42] Ed McCall (attorney, applicant's father): closer to any lines and we're not creating any living space in any segment okay. [1:33:58] Chair (presiding officer): I think the next part of this is for us to just try to make one observation I don't have a question but just an observation you distributed some copies of an affidavit and my copy is not signed somebody has [1:34:17] Colin Cogburn (applicant): the side oh okay as long as there's one side okay that's good as long as there's one that's in the record that's all I was trying to consider thanks yeah this is the one that can go into [1:34:28] Chair (presiding officer): that's the official one okay thank [Board member: you] so when this board has heard previous variance requests we've gone through the individual standards that need to be met and discussed them and voted on them individually so that's what we'll do again tonight corporation council would you like to read the sure happy to so there are eight standards that need to be met for this board to grant backs both difficulty variants what I can do is read each standard if someone would like to make them one board member would like to make a motion I'd make the motion in the form of an affirmative so you know that the criteria was met and then someone second that we would then take any discussion as to the board's rationale or reasoning behind that particular standard and then the chair would call a vote on that on that standard so there's six members of the board here you need four votes to pass each individual standard so I'll start with the first one which is the strict application of the ordinance to the property precludes the ability of the applicant to pursue a use permitted in the zoning district in which the property. That? Right, that's what you're looking for? Sure,. Criteria, just call it criteria one, yeah. I'll second. Okay. So the motion is that criteria is met. I think that, so like traditionally, we always go in the affirmative and then we open up the discussion and the debate. So, yeah, if you want to just recite it one more time and then we'll get it. Yeah, the strict application of the ordinance to the property precludes the ability of the applicant to pursue a use permitted in the zoning district in which the property lies. Okay, and then just to get it started, I think that it certainly precludes a permitted use because it's a residential property being used for residential use in a residential zone. I don't think anything they've described here is not permitted, at least that's how I understand this test, so I would likely support the motion. Any further discussion? Took the words out of my mouth. Sorry. [Speaker H (unidentified): All right,] Hearing none, I will call a vote on the first, what are we calling these? Criteria. Criteria. Standard. Standard. Okay, the first standard, an affirmative vote means that you believe that the standard has been met, correct? And I don't vote, right? No, you owe, oh, I vote. Yeah, everyone votes, so you could just say all in favor, all in favor, that's unanimous, Corey made the move. [David Andreessen (neighbor: Next the] strict application of the ordinance to the property results in significant economic injury to the applicant, so moved. So moved. I second. Great. Please. Any discussion? I mean, it does sound like the less feasible alternatives are an economic hardship, and not having a variance of any sort would be an economic hardship. I think this case certainly highlights the difficulties in all these tests, frankly. You know, I think we have to make or have a detailed discussion about it, you know, as much as I was going back and forth with Attorney McCullough on this point, that potentially everyone could raise it, at least in 2026, the way the interest rates are, presuming, of course, they have a lower interest rate mortgage when they bought it in 2023 versus what the rates are now, presumably higher. I think I'm persuaded by a preponderance that it's more likely than not that they're going to have, I don't know if I agree with every dollar amount, but I would find it to be at least $100,000 dollars of economic injury, probably a discussion later with city council on do we want to adopt a more clear and lenient point on this, but you know, I do find that we've seen this problem before where people are going to be forced to sell a home because they can't grow into it or they can't age in place. It's unique arguments to me, not having heard it before, but I think they certainly laid out a factual basis as to what their economic injury would be. Perhaps someone in a different place doesn't have the same injury. Maybe they're an all-cash buyer and don't need financing. They've got a friend or sibling who's a realtor that's not going to ask for a broker's fee. The potential buyer now is going to be able to Google this home, and this is probably going to be one of the top hits that comes up at this meeting about how they can't, if we were to go the other way, can't improve the second floor, at least under these plans that we're going with tonight. I would imagine it's more likely than not that 's going to have some negative impact on the resale value as well so for those reasons I would I would support the finding that economic injury has been satisfied here but their comments about this standard [1:42:05] Board member: just generally I would agree. I think that there is, they have presented a significant amount of specific evidence that they feel applies, which I think if you kind of accepting their interpretation of wiper the balance of sort of the size of the project, the harm to the neighborhood, and this hundred thousand plus number, I think it does meet this standard of significant economic injury. Great. [1:42:43] Chair (presiding officer): Well, I will call for a vote on the second standard. Those in favor, please raise your hand. Okay. Next, the need for a variance is due to the unique circumstances of the property and not to the general condition of the neighborhood. So moved. Second. Any discussion? I think the applicant has done an excellent job of teaching us about the neighboring properties and the impact to the abutters. And in my opinion, this home does have unique circumstances that would meet this standard. Could you share what those are for the person who has to draft the decision? Sure, well, the fact that the property was, you know, built where it was, when it was, when maybe interpretation of the zoning code was different or they were using different standards, is specific to this property, and then it seems like the general condition of the neighborhood has sort of mixed between one-story and two-story homes, so increasing the ridge line of this property by three or four feet would not make it out of character with the rest of the neighborhood. I think that is an excellent point that speaks more to the next standard with [1:44:42] Board member: The effect on the neighborhood, thank you. I would say that the low slope of the roof, yeah, is unique to this particular property. It seems to not be common amongst the others, and I think that plus the history that Miss McConnell spoke to come together to [1:45:01] Speaker H (unidentified): make it unique. I would add to the location of the stairwell where it is and not in the center of the house, in combination with the low ridge line, makes it unique and [1:45:15] Chair (presiding officer): I agree the low ridge line, there only being one other property that shares that characteristic. Any [1:45:27] Board member: further discussion on this point? Okay. [1:45:31] Chair (presiding officer): I will call a vote on standard three. All those in favor, please raise your hand. The next standard is the granting of a variance will not produce an undesirable change in the character of the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting properties. Look for a motion. I'm sorry, so second, let's open it up for discussion. I think this is the easiest one to name. Yeah, I mean, you know, not only is, I heard no opposition, I heard only support from the neighbors, and there is the south box style home that is already across the street or next door, I forget which direction, but right in the closest part somebody's you can get. Yeah, I don't really see any way against it. Any other discussion from the board? Hearing none, I will call a vote. All those in favor, please raise your hand. Next standard, the practical difficulty is not the result of action taken by the petitioner or a prior owner. Second, let's discuss. I should maybe advise the board here, it used to be the case that if you buy a property with notice of the zoning restrictions, that was deemed to be your fault, but that's no longer the case. So the fact that the applicants here may have been aware or not aware of, you know, the non-conformity when they purchase the houses is not relevant. So that's not just, that's not their action, it's not their fault, so I just wanted to offer that guidance to the board on this particular standard. How does that tie in with us considering prior owners? The practical difficulty is not the result of action taken by the applicant or a prior owner. I think the same could be said. I mean, it's the house was built where it was when it was, and it was presumably legal at the time in 1945, and the footprint of the house I don't think has changed since that time, so based on the materials that the applicant submitted. Yeah. This one's always, it's like worded funny, but you know, I think it's, it's again one of the stronger ones they have, you know, the footprint and the encroachments that they currently have, they had nothing to do with, is, I think it's essentially what we're looking at here, you know. Had they, I think the inverse of it, I think we had one of these a few years ago where, say, they went and did this, what they're proposing, and then asked, you know, for the variance, that would be something that they had done in Like, I think that's the easiest way to think of it in my mind, at least. This is an old, I mean, looking at these old plants, you know, it's, it's, I don't even think we could trace back, you know, who did what and when exactly, but it's certainly not a self-created issue in my mind. Any other discussion? Hearing none, I will call for a vote. Those in favor, please raise your hand. The next plan is no other feasible alternative to a variance is available to the petitioner. [1:50:16] Board member: So move. Second. Open [1:50:20] Chair (presiding officer): for discussion. I thought the engineer's letter was compelling on this point, adding 12 structural columns to an existing home to put what looks like a party hat on a roof, it's not a feasible alternative in my mind. I think this is one of the more difficult ones for any applicant, not just this applicant. I think in the past six years or so, this is really all I can speak to. We've taken a very narrow view to this, and I think to Attorney McCall's point, which I think is very clear in the law, you know, feasible does not equal possible, regardless of Bill Gates' income or not. It's possible. I think we all agree. We, you know, and the petitioner agrees it's possible. But I think Attorney McCullough's right in that definition of feasible. It's not synonymous with possible. There's some reasonableness factor to it. I don't think it needs to be tied at all to the petitioner's economic stance. I think it comes down to common sense, which sometimes we lose in all these statutes and cases and conflicting cases, but for me it comes down to, is it really feasible to put all these posts inside your house? Like we're all used to having a post or two in our basement, you know, or a post in the attic or whatever, but having posts kind of throughout the first and second floor of your home, it's not really, it's not a feasible thing in my mind like I'm trying to recall a home I've been in that might have as many posts as is proposed in the alternative plan here and I can't really think of any. I'm sure one exists somewhere but I just haven't inside it but that doesn't you know that just means it's possible. This one is certainly a trickier one but you know I certainly would like to hear what other board members have to say on it. I [1:52:54] Speaker H (unidentified): do think that the proposed design is maybe the most minimal change that could be done to create living space on the second floor and to you know create a safe stairwell. So I think it would be an easier question if they were asking for something much grander and you could kind of ask them to scale it back in some ways and make it feasible but I just don't know that there are easy ways that you can do something different that would still be feasible. [1:53:25] Chair (presiding officer): Yeah, I think it's kind of like the structural problem the way I understood it in those alternative plans where because you have to essentially put a new roof to simplify things within the set the setback. I can't imagine a way you could do it without the support that's needed for the structure without you know putting all those posts in all over the house essentially. Yeah, and like they're you know economic feasibility aside it's the livability of what that does to the interior of a home that I think is questionable. Yeah, exactly like I don't think that anyone's expecting a home to have a bunch of posts just because it's possible right regardless of the petitioner's you know wealth or otherwise financial ability to do it. I think Bill Gates isn't going to want a house with a bunch of posts other discussion on point six. Well then we'll call a vote. All those in favor please raise your hand. Seven, the granting of a variance will not unreasonably adversely affect the natural environment. Second, you guys wrong open for discussion. It seems to have very minimal if any environmental impact in that it's not it's going up not out. I didn't hear any testimony about any environmental impact, did not see any in the summit, and I'd imagine if we grant that same construction goes underway, they're going to have to follow the city's environmental ordinances anyways. So I'm just struggling to find any evidence against it. Other thoughts? Let's vote. All those in favor, please raise your hand. Thank you. Oh, the last one's an easy one. The property is not located in whole or in part within the shoreland areas described in 38 MRS 435. [1:56:18] Board member: Discussion? I think this is the easiest one. Yeah. It's not a shoreline zone. No evidence to suggest it is in. [1:56:26] Chair (presiding officer): Are you able to confirm that this is not in the... I'm doing that right now. [1:56:30] City staff / planning representative: If the closest shoreline zone is over here. There you go. Great. [1:56:36] Chair (presiding officer): Yeah, I heard no evidence that it was in the shoreline zone. And from what we're looking at, it's certainly not in the shoreline zone. Okay. Let's vote on this final standard. All those in favor? Please raise your hand so Now you've all voted on the individual standards and you voted that each of those standards has been met. I think for the record we should have a final vote and it should not be controversial given your prior votes on whether or not to grant the variance based on the discussion of the individual standards. So I think the form of the motion would be motion to a motion to grant the variance requested in application A 26-14 oh three Catherine McCollum on Coghlan related to property at 199 Margaret Street second [Speaker H (unidentified): Any] Further discussion from the board before we vote? Hearing none, all those in favor please raise your hand. Not Surprising just now some sort of housekeeping things. I'm here because in part I'm gonna draft a written decision memorializing your decision tonight, explaining the reasoning behind it. I've been trying to keep notes during the meeting. I wouldn't say that I'd be able to finish this decision for I don't know it might be a little while so you can stick around and listen to me type you can you can take a vote to authorize the chair to sign the written decision when it is done or you can vote to sort of reconvene to it to review and adopt the final decision if you want to read it before it gets signed and adopted. So those are your options. [1:59:17] Board member: I move that we appoint the chair to sign on our behalf once the written decision is complete. I second. [1:59:28] Chair (presiding officer): So this is the way we've done it for many, years. I think we said to be mindful it's seven days from today. So it has to be signed by next Monday. Day so if the draft can be done you know by next month I'll get it I'll get it done Probably tomorrow and then the chair came I'll pop right over and sign it. Any further discussion about the motion we've just heard? Hearing none, we should vote. All those in favor please raise your hand. The motion carries. Okay Guys and that was okay [2:00:22] Chair (presiding officer): I believe that closes our new business segment of the meeting and we have no old business and no board business to discuss at this time [2:00:33] City staff / planning representative: Could make a comment? Please do too. I didn't want to bring this up during the meeting because I didn't want to change anybody's thought process, but we are actually looking at changing some of the setbacks in the zone due to the comp plan and due to some of these issues that we've actually done further research in the planning department, and we found that there was a high percentage of non-conforming structures with the similar issue to this one. So we are actually or the planning department is going to planning board on October 14th to propose some amendments to reduce setbacks in certain areas so hopefully these become less and less of an issue for the Board of Appeals to look at so we're looking at planning board on 1014 If it moves forward from there, it goes to the council on October 27th for a first read and a second read on November 17th, whereby it could be in effect by December 7th. So hopefully, it's too bad that you couldn't have waited for that. Glad you got what you got. I just wanted to make that comment. [2:01:41] Chair (presiding officer): I appreciate it. Thank you for keeping us up to date. Does anyone else have anything they'd like to discuss before we adjourn? I would just say if you're in the mood to talk to city council, maybe next time we can put on the agenda some of what was brought up about some apparent thing that was never really passed or considered or whatever by the city on this type of variance request. It might be interesting to go down that rabbit hole a little bit and see what that's all about. Super. Thank you, we are adjourned. All right, double gambling, double gambling, the first successful variants I've been a part of, very exciting. [2:02:33] Board member: I actually had your question in mind, I think. [2:02:43] Chair (presiding officer): This is actually very interesting.