CARRABASSETT VALLEY – Selectmen took no action on the planning board’s request that a developer, who is also a selectman, be penalized for not including protective covenants in the deeds to limit the use of basements to storage only for an 11-unit subdivision completed four years ago.
Planners discovered last summer that all but four of the units in the Castle Creek development had finished basements and there were no covenants in place limiting the use of the basement space. Bill Gilmore, the town’s code enforcement officer, noted that the basements that are now finished into living areas are permissible under the town’s zoning ordinance and building codes. But, “the (planning) board feels it was mislead by the developer and wants appropriate action by the Board of Selectmen,” Gilmore read aloud from his letter to selectmen.
Four members of the planning board voted on Jan. 28 to recommend that developer Lloyd Cuttler be fined $2,500, the maximum amount allowed under the town’s ordinance regarding subdivision development, for telling the board a covenant restricting the use of the basement area to storage only would be included in the units’ deeds before receiving permit approval for the subdivision Castle Creek.
According to the June 30, 2005 meeting minutes, Cuttler’s presentation to the board describing the units included, “… and a small basement, which will have protective covenants restricting it to storage only.” The board voted 6-0 to give preliminary approval to the plan pending other permits and a few other details such as added spaces for parking were met before final approval. Satisfied that all of the outstanding permits and criteria had been achieved, an unanimous board gave its final approval for Cuttler’s subdivision plans on July 28, 2005.
Planning Board Chairman Bruce Miles said it’s not a matter of should or shouldn’t the units have finished basements in response to a question from selectmen board chairman Bob Luce. It was that they were told there wouldn’t be finished basements allowed and now seven of the units have the extra living area. The change of plans affects the parking ratio, which is based on a per bedroom basis, and may impact the four unit owners who might want to finish their basements in the future, but could be limited from doing so.
“If you’re going to have a finished basement, we want to know about it,” Miles said. “The original plan said no finished space. Several were; the process wasn’t followed.” He told selectmen when a subdivision plan is presented any changes need to be brought back to the planning board for approval. The danger is that the fire department wouldn’t know that a living area existed in the basement if they went according to building plans submitted. In addition, property assessments are lower than they should be.
“Mistakes were made. Things weren’t done the way they should have been,” Miles said. He added if no action is taken “it sends a message to developers to do what you want. There should be consequences.”
He added that since discovery at Castle Creek, the planning board will be reviewing the whole process towards building permit approval, including phases of inspection, so that any deviation from the plans approved by the board can be detected right away.
For his part, Cuttler, who sat in the selectmen’s table through the meeting, said he believed the discussion regarding the covenant was referring to breakaway development, in which the owner builds a second unit in the basement by creating a separate entrance and then turns around and either rents or sells the space, which makes for a convenient ski weekend getaway.
In Cuttler’s written response selectmen had asked him to submit following Monday’s meeting, he disputed Miles’ depiction of the meeting’s discussion in 2005 in a letter dated March 2, 2010.
What is “at issue are the minutes of the meeting (06/30/05), which says that I stated I would put covenants in the deeds restricting the basements to storage only. The intent of the board was to prevent the owners of the unit(s) to somehow create breakaways. Although this was clearly impossible due to the design of the building, and the planning board’s own single-family approval, I did agree to place a restriction prohibiting breakaways,” Cuttler wrote. He disputes the minutes of the meeting’s portrayal that he agreed to restrict the basements to storage only.
“I believe this statement was taken out of context and clearly did not directly address the concern of the board pertaining to breakaways,” he wrote.
“The whole thing was about breakaways,” Cuttler told selectmen on Monday, noting at the time of construction, they felt the creation of a breakaway was impossible at the site because all of the basements are below grade, making access for a separate entrance improbable.
“I’m not using this as an excuse,” Cuttler said and, looking across the room at members of the planning board attending Monday’s meeting, added he should have been officially notified that they were discussing it.
“To discuss it for one year and not call the developer to come in. The planning board was remiss; it should have been part of the process,” Cuttler said. “In fairness, you should have asked me to come in.”
The minutes of the Oct. 29, 2009 meeting reflect that Cuttler did attend and discuss the matter with the board, but he said he wasn’t officially notified and went to the meeting after hearing about it from others.
“There are no life safety issues, no building code violations and no ordinance violations here,” Cuttler said.
Selectman Luce then requested a written response from Cuttler be sent to the board and more time to look at the building permits and minutes of the planning board meetings during the subdivision’s review in 2005 and 2006.
After the meeting, Cuttler termed the whole matter a “misunderstanding.” He repeated that he thought the covenant discussions were referring to breakaway basements and added that only two current planning board members were on the board in 2005 when the covenant discussion took place.
More details from an earlier story can be found here.
