ZONING BOARD OF ADJUSTMENT
June 23, 2009
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AGENDA: COURT ORDERED REHEARING: 08APP02, GERALD
BRADFORD, 64 Shore Drive, #111-037
CONTINUED AREA AND USE VARIANCES: MARY E. WRIGHT, 988 West Shore Road, #101-008 & -016
ATTENDING: Dan Bouchard (Chairman), Sandra Heaney (Vice Chairman), Ashley Dolloff, Lloyd Belbin, Lorraine Onorato-Sullivan
Alternates: Larry Denton, Alan DeStefano, Sara Shattuck
ABSENT: -----
OTHER: Town Attorney Bernard Waugh, Michelle Bonsteel (Code Enforcement Officer, Steve Yannuzzi (Fire Chief), Barbara Greenwood (Budget Committee), Janice DellaCroce (Planning Board), public
The meeting opened at 6:00 pm. Mr. Bouchard introduced the two new alternates to the Board.
MINUTES OF JUNE 2, 2009: With no amendments, S. Heaney made a motion, second by L. Onorato-Sullivan, to approve the minutes as read. The motion carried.
REHEARING: GERALD BRADFORD
Mr. Bouchard stepped down and Ms. Heaney chaired this hearing.
Ms. Heaney mentioned that, since the original hearing, four letters have been received; they are from John & Kathleen Kearns, Peter & Elizabeth Cole, Elaine McCaffrey, and Grace F. Freije.
Attorney Philpot, representative for Mr. Bradford presented packages for the Board, Attorney Waugh (Town Attorney) and Attorney Fahey (abutters Labrie attorney). He stated that we are here for a matter remanded by Judge Vaughn who has asked the ZBA to look at obnoxious use (Article 4.1 of the Zoning Ordinance). Atty. Philpot questions if the issue is really a question of the petitioners house and not the fence. Things are close in the Lake District.
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BRADFORD REHEARING continued:
Attorney Philpot went on to say that, in 1997, the Labries (abutters in question), chose to put an addition (see exhibit 10 of the packet), for a recreation room and a full bath. They fully renovated the camp. The permit was denied by the Code Enforcement Officer and a Variance was applied for. In the 1998 minutes of the continued hearing, Board member Lee suggested that the bathroom could be more in the center and added that we don’t always get what we wish for. The Labrie comment, page 3 of the minutes, was that there were others in the area that had similar situations and that they should get the same relief. The Board felt that the Labries were given a hardship in that the Code Enforcement Officer had allowed footings to be put in before the Variance was complete (due to winter coming on). Ms. Lee and member Mr. Powden felt that this created a hardship and the ZBA gave them relief. The building official, 12 days later, disputed that he, Al Ikeler, had done so. He said that winter was coming on so he gave permission to dig the holes but not put in the footing. The Labries built over the boundary line and the owner had to relinquish land and now they want to deny Mr. Bradford for a fence that has a legal building permit.
Mr. Philpot continued to say that Mr. Bradford alleviated the sight problem and this was signed off by the Police Chief. Mr. Bradford also cut out areas for the mechanicals. All of these mechanicals were added to this side of the building after the addition in 1998 as can be seen in the photos of exhibit 8. The Labries chose to put the air conditioner, dryer, and a propane fireplace on this side of the house. These items blow exhaust into Mr. Bradford’s air space.
At this time, Atty. Waugh questioned which alternate was sitting in for Mr. Bouchard. Ms. Heaney apologized as she had been told that Mr. Denton was no longer an alternate but a member. It was determined that he is still an alternate and was named to be the member sitting in for Mr. Bouchard.
Mr. Philpot then distributed “nuisance” sheets and referred to 495 and 496 of the sheet. He continued to explain that the Labries say that have no access to maintain. There are also no easements or anything allowing them to use Gerry Bradford’s land to access. This is not for esthetics. Fences are allowed to be on the property line per the Zoning Ordinance. This Board is being asked to set a precedence in which they will have to ask if every fence is an obnoxious use. In the packet, item 7, shows the Zoning Ordinance, Article 8.144 that addresses fences. Also, exhibit 8 shows family photos, one of which shows the addition with no mechanicals. The present large window replaces the small window shown in these photos. They got what they wished for and now want to deny Mr. Bradford.
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BRADFORD REHEARING continued:
Ms. Heaney asked for public input at this point, beginning with those in favor and explaining the process for speaking. No-one spoke and those not in favor were then asked to speak.
Todd Fahey, Attorney for Roger and Mary Labrie of 62 Shore Drive, introduced those with him as Atty. Rachel Goldwasser, Mr. & Mrs. Labrie, and Nicholas Cricenti, a fire code expert. Mr. Fahey distributed photos and pointed out that the fence is within inches from the Labrie building. The basic footprint and the window are from the 1930’s. Mr. Bradford did get a fence permit from Ms. Bonsteel. No-one envisioned the fence would be this close. Originally, the Labries wanted the whole fence removed but decided to just ask that it be removed for the length of the house as Ms. Bonsteel remedied. Life and Safety codes are at issue. Atty. Fahey then gave out a Memorandum of Law by the Labries. He sited a case of refuse being left in this location and needing to be removed. He then read Article 1 of the Zoning Ordinance. He said that the fence violates the Zoning Ordinance as well as local and state requirements. Article 4.1 shows that it is obnoxious use and Atty. Fahey read the article.
Atty. Fahey continued by saying that the Labries came in 1987 and they followed the procedure for a Variance. The two pieces of property have had dueling surveys, he added. The boundaries were adjusted and paid for. This fence comes in 10 years later and then the revocation of the permit which probably should never have been issued. This is a Life Safety issue. The previous Bristol Fire Chief had problems with it. He then distributed a report from Mr. Cricenti and said that they are asking the removal of the portion of the fence from the beginning of their building to the end of it. He then asked to have Mr. Cricenti speak.
A report was given by Nick Cricenti, FSC Engineering Partnership Inc. of Manchester, who stated that he was a fire fighter for 28 years. He was invited to look at the fence in May. The State of N.H. has a 2006 Building Code and Fire Codes to follow and this fence does not meet them. He stated that a utility structure, known as U, and a residential structure, known as R, is used. When you have a U and an R less than 5’ apart, it must be a 1 hour rated U. This is required by State law. NFP 101 requires an escape window and this hole in the fence won’t function that way. Stephanie Johnson says the State of NH sees this as being against the electrical code as a disconnect has to have 3’ of distance. Letters from Michelle Bonsteel, Code Enforcement Officer, and Stephanie Johnson reference excerpts of 602 and the 110 electrical code.
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BRADFORD REHEARING continued:
Mr. Denton asked for the dimensions of the window for egress Mr. Cricenti said that a minimum would have to be waived by the Fire Marshall. Steve Yannuzzi (Bristol Fire Chief) stated that the minimum is 5.7 sq. feet. He explained that Mr. Bradford has covered the law and also that a rear door would suffice for the egress. Mr. Denton then asked Mr. Cricenti if the window is his opinion or the law and Mr. Cricenti admitted that it is his opinion.
At this time, Attorney Philpot asked to confer with town counsel for a minute. This was granted.
Atty. Philpot stated that it is the existing chief’s opinion that the fence is compliant. It is not a code violation but an opinion. The pertinent language in the court order refers to 4.1 on obnoxious use. He mentioned pages 12, 13, 14, and 15 of the court order. He continued to say that the town has home rule. Atty. Fahey and Mr. Cricenti site the codes but one point is an opinion and the other two are from codes. This is broader than 4.1.
Ms. Bonsteel was asked her opinion and she answered that she is at a disadvantage in that she has not seen the packet given from Mr. Cricenti. Chief Yannuzzi stated that the code does not have to be this window. He then referred to a letter that he wrote Feb. 27th on this. The cut-outs meet the intent. As to the International code, it is limited in dealing with owner/occupied single family buildings. If it were changed to a rental, that would change and come under the code. Ms. Bonsteel added that the International building code prefers to have this fall into a residential code. Mr. Cricenti stated that it comes under IBC as it is not covered by IRC. The Chief talks of a rear door exit, but by the code, there must be an escape window from every single space.
With no other comments from the public, Ms. Heaney closed the public session. She then requested that the deliberations continue to July 7th at 6:00 pm.
At this time, Mr. Bouchard returned to the table and adjourned the meeting for 10 minutes.
CONTINUED VARIANCES FOR MARY WRIGHT/TODD BALDWIN
Area Variance: The approval from DES had been received and the secretary reported that DES called today to say that the cottage is to remain a two-bedroom building. Ms. Wright agreed and said that it states this on Mr. Bernard’s septic plan. The Notice of Intent was then signed as complete.
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WRIGHT AREA VARIANCE continued:
Use Variance: Atty. Michael Donovan was now representing Ms. Wright along with Atty. John McKinnon. Atty. Donovan stated that they have withdrawn the plan for the second floor balcony.
Atty. Donovan stated that they got the survey plan and he gave out a summary to the Board. He stated that they originally applied for relocating the front entrance to the side, adding a porch and a second floor balcony. They have withdrawn the balcony. They narrowed the north side and eliminated 5’6” total from the porch. He pointed out that the front door is within 8’ of the road right now. They wish to eliminate the steep steps from the present deck to further back on the south side. They also want to make it a 5’ wide porch to comply with turning a wheelchair, per ADA standards. The total impervious surface has been reduced to slightly less than it was. The new deck will encroach slightly on the south side but this is virtually nothing except open water, beach, and the road.
Mr. Bouchard stated that the Board has no area variance for the setback that is infringed upon. There is only an area variance for the new septic system. Atty. Donovan pointed out the wording of the application and felt that this covers it and the Board agreed.
Mr. Donovan continued by saying that this plan will be less non-conforming by removing the doorway that is so close to the road. It is reasonable use and increases safety. It will not affect the neighbors to the north. To the south, there is no other building close by and it will upgrade the neighborhood. The hardship is it’s proximity to the highway and the steep access. The Use Variance is tied to the setting of the lot. This area of Bristol only consists of about half a mile and has only about 7 cottages. The porch will be an attractive addition. It will not alter the area. At least 1/3rd of the shore coverage is open space. It has a unique setting. Atty. Donovan pointed out (on the bottom of page 2) that the law is to avoid overcrowding and to reduce non-conforming situations. The Shoreland Protection Act allows open decks up to 12’ on a non-conforming building (RSA483,B.11). He encouraged the Board to read the court decisions. This plan does not interfere with public or private rights and would not diminish the surrounding properties. Substantial Justice would be served as it would reduce encroachment. The Use has applied the more stringent plans so the Area should be okay. Atty. Donovan then went over a. and b. on the last page of the packet and added that cost is not relative here. There is a slight encroachment with the West Shore Road setback. The Use is reasonable and the Area is reasonably used. There is no substitute alternative and should have no basic objection. He alluded to RSA674.33, 5th paragraph which deals with disabilities and, as Ms. Wright anticipates needing a wheelchair in the near future, the ADA standards are reasonable.
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WRIGHT VARIANCES continued:
Ms. Heaney asked if they intend on putting in a ramp and Atty. Donovan answered that they will need to do so when the time comes. Mr. Bouchard stated that a condition could be placed in which a new owner would have to tear the porch down.
Ken Chorney, abutter, said that he has no difficulty with the basic plans. His concern is that they backfilled from the driveway up against a birch tree and he asked if that wouldn’t kill the tree. Atty. Donovan showed a photo of the tree and stated that this is temporary fill so they can get in to drill and it shall then be replaced.
John Weaver, Attorney for the Van Buren’s (abutters to the north side), stated that the Van Buren’s object to this plan. The setbacks and the elevation measurements of the house are not on the plan. Mr. Bouchard explained that these are shown on the smaller version of the plan. The Attorney continued to say that the Lake District is designed to keep the esthetics of the Lake. As to hardship, the tax map shows that many of the Lake lots are tiny so several are like this. This case is not special. As to Spirit of the Ordinance, it keeps the cultural character with appearance changes. In the past, privacy and property values had screening. Pruning along with expansion of the deck has increased space and brings expanded use. The best portion of the lot is lakeside. A photo of the pruned tree was shown. He added that, on the first page of the conditions asked by the Van Buren’s, the first two requests need an expert to analyze. The third is to eliminate the second story porch. Mr. Bouchard asked Ms. Wright’s attorney if they would accept the conditions and he answered that they would not. Atty. Donovan continued by saying that the 9’ Spruce was trimmed of lower limbs and that Ms. Wright has the right to prune her property if she desires. He feels that these conditions are irrelevant. After the first hearing, Ms. Wright told the Van Buren’s that she would pay for a tree for them to plant and care for, she withdrew the second floor balcony, and it is not lawful to require that she can no longer look for another Variance in the future.
With no other public comment, Mr. Bouchard closed the public session. He directed the Board that they should talk about the criteria of the Use and Area Variance.
Ms. Heaney asked how far it is to the actual setback. It was figured to be 2’4” and a bit more than that on the other corner. The Board looked at the decreasing of the overall impervious surface and discussed this a short time. Mr. Bouchard summarized that the hardship is the size of the lot. He felt that the area cannot be met by another reasonably feasible solution. Ms. Onorato-Sullivan asked if there is a door to the front deck and was told that there is. Ms. Heaney thought that adding the deck there is not feasible. Mr. Bouchard felt that what they intend to add to the deck is reasonable. Mr. Belbin mentioned that the gable end of the roof would allow rain to pour down without the added deck.
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WRIGHT VARIANCES continued:
Mr. Bouchard went over the criteria and said that the public interest is okay as is special conditions. As to consistent with the Ordinance, we are not to prevent people from the use of their property.
Mr. Belbin asked for a condition where the added porch/deck cannot be closed in or be considered a part of the footprint of the building. Mr. Bouchard stated that there would be no condition that it had to be removed though. The Board agreed. Mr. Bouchard continued saying that sometimes to get a little, people ask for a lot; the Board will not consider the third condition of the Van Buren’s. They could ask the applicant to plant a tree for screening. Ms. Dolloff and Mr. Belbin then questioned if this would mean taking down the existing tree. Mr. Bouchard agreed that the VanBuren’s could plant their own tree, if that is what they wanted. Ms. Heaney added that the hope is that neighbors would live in harmony.
The Board agreed to add the condition that the new deck/porch will remain an unenclosed deck/porch. With this condition, the vote was 3 in favor, 1 opposed and the Variances passed.
Mr. Bouchard added that, as far as the temporary fill being removed, this may be under DES compliance and Ms. Wright should see the Land Use Officer if DES has no requirement for this.
CORRESPONDENCE:
There was an ad for “Knowing the Territory” and the secretary explained that LGC said that they have sent a copy to each town. The June 2009 Town in City magazine will remain in the office for any member to read.
OTHER:
Alternates: Mr. Bouchard explained that tonight’s cases were tough ones. He shall give all of the alternates a chance to participate on an alternate basis whenever an alternate is needed. In the meantime, they need to study the Zoning Ordinance, RSA’s dealing with Land Use, and the criteria for a Variance. He added that the applicant must meet all 5 of the criteria in the Board’s mind in order for them to cast a “yes” vote. Three “yes” votes must be found in order to approve the application. The Chairman does not vote unless a tie needs to be broken. Ms. Shattuck asked if the alternates can ask a question. Mr. Bouchard stated that this is not advised as cases come back and the alternate may need to serve. They can ask hypothetical questions of the Board at the end of the meeting. All members should visit the sites. If they wish, there is a town badge that they can pick up from the town office, but most find that this is not needed. If 3 members show up at the same time, one must leave as this would signify a quorum and an official meeting.
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NEXT MEETING:
The next meeting will be held July 7th and is a very busy one. Besides the continued Bradford case, the agenda includes a Use Variance for the Roman Catholic Bishop of Manchester, a continued hearing for the Kenney Family Trust, Area Variance for Peter and Susan Orlowski, Area Variance for Ryan Desmarais, Use Variance for Donald and Donna Vallois, Use Variance for Ray Parkhurst/Daryl Dreffs, and Use Variance for Susan and Christopher Horeth.
As this is an especially full agenda, Mr. Bouchard has determined that he will not continue past 10:00 pm (unless we are in the middle of a case) and he has made arrangements to hold a continued meeting on July 28th. He asked that everyone try to hold that date open.
With no other business, L. Belbin made a motion, second by L. Onorato-Sullivan, to adjourn at 8:30 pm.
Respectfully submitted,
Jan Laferriere, secretary