ME - Portland: APPEAL AGENDA

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APPEAL AGENDA

02/15/18 - Agenda

02-15-18 AGENDA.PDF

ZBA Application - 11 Stevens Avenue

11 STEVENS AVE - INTERPRETATION APPEAL.PDF 11 STEVENS AVE - ZONING MAP.PDF

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1.

Documents:

1.I.

Documents:

CITY OF PORTLAND, MAINE ZONING BOARD OF APPEALS

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Eric Larsson, Chair

Donna Katsiaficas, Secretary Kent Avery

Robert Bartels Benjamin McCall

Joseph Zamboni

APPEAL AGENDA

The Board of Appeals will hold a Public Hearing on Thursday, February 15, 2018, at 6:30 p.m. in Room 209 on the Second Floor at Portland City Hall,

389 Congress Street, Portland, Maine, to hear the following appeal:
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1. New Business:

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A. Interpretation Appeal: 11 Stevens Avenue, Margaret E. Gaertner, owner, Tax Map 188, Block

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A, Lot 004; R-3 Residential Zone and R-P Residence Professional Zone: The applicant is challenging a Notice of Violation dated January 17, 2018 that

cited the property owner for the lack of escape windows in the owner s bedroom under the Life Safety Code, NFPA 101 (2009) 24.2.2.3.3. Representing the appeal is the owner.
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2. Adjournment

11 Stevens Avenue Appeal to Violation issued by the Housing Safety Office Page 1 of 4

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Margaret Gaertner 11 Stevens Avenue Portland, ME 04102

January 26, 2018

Zoning Board of Appeals City of Portland 389 Congress Street Portland, ME 04101-3509

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Dear Members of the Zoning Board of Appeals:

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Reason for Appeal I am requesting the violation regarding the escape windows in the Owner s bedroom be removed from my property at 11 Stevens Avenue

as a. I believe the Housing Safety Office has misinterpreted the City s ordinances regarding the extent of what they are to inspect and b. replacing the window is unnecessary as the room already has two doors for safe escape and c. replacing this window is a financial hardship made worse by the City through their lack of internal communication.
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Attached please find the violation that I am appealing (Attachment One). Please note I am not appealing the first violation and will work with

Housing Safety to correct it (although I am frustrated by the conflicting directives). I am only contesting the second violation.
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Background I have owned this house since 2010 (please see deed, enclosed as Attachment Nine). The house was very rundown when I bought it and I have

been making cosmetic repairs since then, and do most of the work myself. It is a one-story ranch house with 1,456 s.f. of living space on one level. All windows and exterior doors are at thus at grade.

I am the owner of the property and live here full-time. This is my primary residence. There are two large bedrooms, one of which I occupy (the Owner

s Unit on the enclosed sketch plan) and the second bedroom (the Rental Unit on the enclosed sketch plan) I rent intermittently typically for 3-6 months (a long-term rental ), occasionally as long as a year.
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When the City enacted the housing rental regulations, I contacted the City to see if this applied to my situation (an owner-occupant with a roommate)

and was surprised to learn that yes, it did, and yes, I needed a license.
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I applied for the license, submitted a sample lease and payment in 2016, and the rental license was issued. On September 28, 2016 the house was

inspected. At the time, there was a plug-in carbon monoxide detector in the Rental Unit and the inspector said I needed to have a 10 year-sealed battery detector in the Rental Unit and a smoke detector in the Living Room. I installed both as directed. He did not inspect the Owner s Unit and no
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11 Stevens Avenue Appeal to Violation issued by the Housing Safety Office Page 2 of 4

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other comments or requests were made. On January 31, 2017 I paid the license fee for 2017.

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In December 2017 the City conducted a routine inspection of my Rental Unit. As my rental unit was previously inspected and approved by the City and

no changes have been made to it, I expected no issues. Thus, I was very surprised when during the inspection the inspector told me the CO detector was in the wrong location, even though I had installed it where directed by the City.
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I was more surprised when he said he needed to inspect my own room, as the first inspection only included the rental room. Also, the City s website

and ordinances make it very clear that the Owner s Unit is not subject to inspection.
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City of Portland Code and other City Publications Regarding Inspections As stated on the Housing Safety Website

(https://www.portlandmaine.gov/1656/Housing- Safety ) A residential rental unit can be a rented apartment, house, condominium, or rented individual room. As also defined in the City Code, I have a Rental Unit within my Owner-Occupied, single-family dwelling:
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Sec. 6-106. Definitions. Dwelling shall mean any house, building or part thereof which is occupied or intended to be occupied, in whole or in part,

for living and sleeping by one (1) or more occupants. A dwelling may include one (1) or more dwelling units or rooming units or a combination of both.

Sec. 6-150.1. Definitions. Rental unit is a portion of any residential structure that is rented or available for rent to any individual or

individuals for any length of time. Any portion of a Single-Family Home, Condominium, or Apartment that is rented or available to be rented to an individual or individuals who are not the owner or owners shall be considered a rental unit.
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Sec. 6-150.1. Definitions. Owner-Occupied shall mean a rental unit owned and occupied by the registrant as his or her primary residence.

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The City s Code (chapters 6 and 10) and website clearly state the Owner s Unit is not subject to inspection. City Code Sec. 10-3. Amendments clearly

states that rental units are inspected, but premises covered by Chapter 24 of NFPA 101 are not subject to inspection:
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(n) Inspections. The authority having jurisdiction, upon proper identification, shall have the right to enter at any and all reasonable times for the

purpose of inspecting in order to determine compliance with the provision of this Life Safety Code into or upon any of the following premises: any rental unit subject to registration under section 6-151; any premises subject to this article, with the exception of premises
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11 Stevens Avenue Appeal to Violation issued by the Housing Safety Office Page 3 of 4

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subject to Chapter 24 of NFPA 101; any premises when any governmental agency having jurisdiction over a particular premises should request it to do

so; or any premises in response to a complaint regarding conditions governed by this Chapter. It shall be a violation of this article for any person either to interfere with or to prevent such inspection.

As my home is a one-family dwelling it is a . premises subject to Chapter 24 of NFPA 101 and as per the City Code thus exempted from inspection, with

the exception of the Rental Unit within it. The Inspector was beyond his authority when he inspected my unit and ordered me to make this unnecessary and costly repair.
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Please see Attachments Two and Three for screen shots of the City of Portland s Housing Safety website which clearly state, in two separate places,

Note: Owners occupying a unit on their own property are not required to register the unit they occupy, but must register the units that are rented. (This paragraph can be found at both https://www.portlandmaine.gov/1656/Housing-Safety and https://www.portlandmaine.gov/1680/Rental-Registration .)
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Safe Exits Please see the enclosed sketch plans. Please note my roommates are not allowed in the Owner s Unit. The Owner s Unit has two doors that

provide exits from the room. The doors are standard residential size doors and measure 6 -6 by 2 -6 . The Study adjacent to the Owner s Unit is only used by the Owner and is under my exclusive control.

While the windows do not meet the size currently required to serve as an egress window, they were approved when the addition to the house was built

and I am easily able to climb through them. On a practical note, should a firefighter need to enter, he/she d have to break a window as they are locked at night and whenever I am not home. He/she can and logically would break the large picture window and enter that way (see photo in Attachment Eight).
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Hardship I am very frustrated at the lack of consistency displayed by the various inspectors. I installed the co detector and added a smoke detector

as directed by one city inspector only to be told by the next inspector that the co detector is in the wrong place. I have made no other changes to the rental unit since the last inspection and changes made to the larger house (demolition of a deck and removal of a exterior door in my living room) were permitted with and approved by the City.
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It is not practical for me to install a new window at this time as financially I am already overextended completing the work of removing the deck and

filling in the door. I am also now facing additional financial hardship, as this room can t be rented, even though it was previously inspected and licensed and no changes have been made to it, or to the house, without City approval. It is January and the window opening, especially the existing wood sill, requires scraping, preservative application, priming and painting before a window can be installed in it. This requires several days of warm, dry weather. Contractors in the Portland area all very busy and the 30-day time period to correct this is not realistic.
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ATTACHMENT ONE Appeal -- 11 Stevens Avenue

AT TA

C H

M EN

T TW

O A

pp ea

l - -

11 S

te ve

ns A

ve nu

e

AT TA

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T TH

R EE

A pp

ea l -

- 11

S te

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Sketch Floor Plan Showing Rental Unit and Owner s Unit 11 Stevens Avenue Not to Scale

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LEGEND

Door with leaf

Opening w/o a door leaf

Operable (OW) or Fixed (FW) Window

GARAGE

Rental Unit

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Owner s Unit

LIVING ROOM

KITCHEN

W

OW

FW

OW

OW FW OW

CL.

CL.

CL.

BATH

STUDY

FUTURE DINING ROOM

OWOW

OW

OW

STAIRS DOWN

HALL

OW

FW

OW

OW

ATTACHMENT FOUR Appeal -- 11 Stevens Avenue

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Sketch Floor Plan Showing Existing Exits 11 Stevens Avenue Not to Scale Dimensions Approximate

LEGEND

Door with leaf

Opening w/o a door leaf

Operable (OW) or Fixed (FW) Window

GARAGE

LIVING ROOM 18 -0 by 15 -0

KITCHEN

W

OW

FW

OW

OW FW OW

CL.

CL.

CL.

BATH

STUDY 9 -11 by

9 -2

FUTURE DINING ROOM

12 -7 by 21 -3

OWOW

OW

OW

STAIRS DOWN

HALL

OW

FW

OW

OW

ATTACHMENT FIVE Appeal -- 11 Stevens Avenue

ST EV

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Exit Path

OWNER S UNIT 15 -6 by 11 -0

RENTAL UNIT 12 -6 by 13 -0

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AT TA

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T SI

X -

P lo

t Pl

an A

pp ea

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11 S

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13 -1

31 -0

20 -0 Side walk

Line

ATTACHMENT EIGHT Photograph Appeal -- 11 Stevens Avenue

Window in Owner s Unit

ATTACHMENT NINE - Deed Page 1 of 2 Appeal -- 11 Stevens Avenue

ATTACHMENT NINE - Deed Page 2 of 2 Appeal -- 11 Stevens Avenue

11 Stevens Ave - Interpretation Appeal

CITY OF PORTLAND, MAINE ZONING BOARD OF APPEALS

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