ZONING BOARD OF ADJUSTMENT
August 5, 2008
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AGENDA: VARIANCE: JOSEPH & ALICE BRANCO, 100 Akerman
Rd., #203-030
VARIANCE: MARY COTTER-LEMOINE, 305 Wulamut
Rd., #102-022
APPEAL FROM ADMINISTRATIVE DECISION: PEFF
CORP., 40 Beech St., #114-150
REQUEST FOR REHEARING: SNHS ELDERLY HOUSING
VI, Inc., Lake St. & Ballou Rd., #216-101.2, .3, .4
ATTENDING: Dan Bouchard (Chairman), Lloyd Belbin, Sandra Heaney,
Lorraine Onorato-Sullivan
ABSENT: Donna Hardy (conflict)
OTHER: Michelle Bonsteel (Land Use Officer), Clay Dingman & Jerry McGwin (Planning Bd.), Joe Denning (Selectman), Public
The meeting opened at 7:00. Mr. Bouchard explained that the Zoning Board is now without alternates and that one member is absent due to a conflict. He stated that, should any applicant wish to continue their case so as to be heard by a full board, they should state this as their case comes before the board tonight.
MINUTES OF JULY 1, 2008:
On page 5, 1st full paragraph, 6th line, before “down-sizing” insert “reconfiguring or” and line 10, following “options”, insert “, reconfiguring or down-sizing,”.
L. Belbin made a motion, second by S. Heaney, to accept the minutes as amended. The motion carried.
VARIANCE: JOSEPH & ALICE BRANCO/STEVEN BRANCO
The secretary read the application, list of abutters notified, where the case was advertised, and stated that there were 0 telephone calls and 3 written responses. Mr. Bouchard read the 3 letters, all of which were in favor of the plan.
Steven Branco represented his parents. He went over the various items that had been presented with the application. He explained that on item #4, the lines of the blocks did not come out and said that the scale is ¼”.
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BRANCO VARIANCE continued:
Mr. Branco then addressed the criteria for a Variance:
1. Not contrary to the public interest – The Brancos notified the abutters who would have the most impact verbally. They did not object and sent in e-mails in support as well as to volunteer to help in its construction.
2. Special conditions exist that would result in unnecessary hardship – This is a ½ acre lot. On one side, there are power lines, next to these are water lines and then the driveway. Anything beyond these would be in the setback. There is also uneven terrain and a number of significant mature trees as well as boulders. The location chosen would only impact 2 abutters instead of 4 (if the shed was placed in front of the house).
3. Proposed use given special conditions of the property – They have no alternative facility for storage, there is only a crawl space under the cottage. They have owned the property for 17 years. The elder Mr. Branco has recently had open heart surgery and is increasing in age, which makes storage an increasing hardship.
4. Method cannot be achieved any other way reasonably: As in #2, the plot of land setup makes it difficult.
5. Consistent with the spirit of the ordinance – It is in line with the overall character of the neighboring properties. Lot #29 would be more impacted if the shed was located in the front of the property. In the proposed location, it would be partially concealed by tree cover which would minimize any possible negative visual impact on neighboring lots.
6. Substantial justice would be done – The effect to the community would be minimal based on the partial concealment by trees. It would increase privacy to the neighbors and is intended to be as attractive as possible.
7. Value to surrounding properties shall not be diminished – Surrounding properties would not be diminished. At present, larger items are pushed up against the house and covered with a tarp. The property is well maintained and an attractive garden shed will increase values.
At this time, the chairman asked for public comment; none were forthcoming.
Mr. Belbin asked about the size of the shed. Mr. Branco answered that it is to be approximately 8’ x 10’ (the area is staked out).
With no other comments or questions, Mr. Bouchard closed the public portion of the hearing.
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BRANCO VARIANCE continued:
Mr. Belbin stated that he has no problems with the proposal. Mr. Bouchard stated that they are encroaching the setbacks in two areas. He felt that the spirit of the ordinance would be to try to avoid encroaching as much as possible. Ms. Heaney felt that the trees are in the way for them to do that. Mr. Bouchard felt that they could place the shed against the house though it would still be in a setback. Ms. Oronato-Sullivan stated that the neighbors all have similar sheds in setbacks and the Brancos abutters are okay with it. Mr. Belbin stated that it should not have a permanent foundation. Mr. Bouchard stated that conditions could be made for: no permanent foundation, the maximum size, and, as a Variance stays with the property, that the shed is removed if the property is sold.
L. Belbin made a MOTION, second by S. Heaney, to APPROVE THE VARIANCE FOR JOSEPH & ALICE BRANCO WITH THE FOLLOWING CONDITIONS: THERE WILL BE NO PERMANENT FOUNDATION, THE MAXIMUM SIZE OF THE SHED TO BE 8’ X 10’ AND THE SHED IS TO BE REMOVED IF THE PROPERTY IS SOLD OR TRANSFERRED. The motion CARRIED.
Mr. Branco asked what type of foundation they could put in and Mr. Bouchard stated that cement blocks or anything not permanent would be allowed.
VARIANCE: MARY COTTER-LEMOINE/WILLIAM PHILPOT JR.,ESQUIRE
Mr. Philpot asked for a continuation for a full board. This hearing was moved to September 2, 2008.
APPEAL FROM ADMINISTRATIVE DECISION: PEFF CORP./PETER G. MC GRATH, ESQUIRE
The secretary read the appeal application, abutters notified, where the case was advertised, and stated that there were no telephone messages or written responses received.
Mr. Bouchard asked the Code Enforcement Officer, Michelle Bonsteel, to present her reason for denial of the Peff Variance submitted. Ms. Bonsteel stated that she compared the application with the originally denied Variance and saw no material difference. She spoke with Mr. McGrath about this and he still disagreed so she sent him a denial letter.
Mr. Bouchard then read the original denied variance application and then the new request and asked Mr. McGrath how he found this to be different than the original. Mr. McGrath stated that they made 10 material changes to the plan. The original hearing was January 18, 2008 with a subsequent meeting on March 4th where changes were addressed. They have made the 10 changes to the plan and made technical changes to the application. Some of the changes are to parking, building height, retaining wall, etc.
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PEFF APPEAL FROM ADM. DECISION continued:
Mr. Bouchard asked if changes were made after speaking with Ms. Bonsteel; the Zoning Board had told him that a new changed application would be necessary after the previous one was denied. Mr. McGrath stated that the changes were presented with the new package of plans and is in the printing. He added that this client has cooperated with the town in every way. Mr. Bouchard agreed that they have been very cooperative but the ZBA has a job to do and must follow it. Mr. McGrath felt that the ZBA could not delegate to an official for determining a change; he felt that only the ZBA can do this. Mr. McGrath continued by saying that the ideas presented were done; material changes such as 8 parking spaces 8’ x 16’ were changed to 12 spaces 10’ x 20’. They met with the Fire Chief and he asked for a sprinkler system as well as many other things. He asked if the ZBA had the Fire Dept. support with the January application. Mr. Bouchard answered that the Fire Dept. letter of support came in after the hearing. He asked if Ms. Bonsteel was aware of the parking change. Mr. McGrath stated that they spoke with the Fire Chief.
Mr. Bouchard stated that the original Variance was to allow 6 units (2 to be added to the 4 that they presently had). The new Variance is asking for the same thing. Mr. McGrath stated that he understands that theory but it is contrary to the law --- they were to come back with material changes. He then cited the case of Morgenstern vs. Rye in 2001. The ZBA denied the case and the Supreme Court reversed the decision.
Ms. Heaney stated that when parking was brought up in the original hearing, Mr. Bouchard shut this down as it comes under the jurisdiction of the Planning Board and that the ZBA could only look at the Variance application which was for 6 units. A discussion containing all of the previous points from both sides followed.
Again, Mr. Bouchard stated that the previous variance was denied due to asking for 6 units. The Code Enforcement Officer sees the new application as being the same. The applicant was unable to get a rehearing due to an error in timely filing. There has to be a significant change to the plan. This Board denied having a 6-unit building in a non-conforming area. Mr. McGrath stated that there is a 15-unit building on one side and a 10-unit building on the other side of them. He wanted the ZBA to change the Zoning District to allow this property to be in a Commercial zone and to change to allow a Commercial building. The applicants have put in $200,000. worth of changes; it is all in the same footprint and just adding two high-income units They could have 5 units, he added. He submitted all the data on June 6th. Mr. Bouchard explained that the ZBA cannot change Zoning Districts.
With no further comments, Mr. Bouchard closed the public hearing.
Ms. Heaney had no comments to add, Ms. Oronato-Sullivan felt that the new application seemed to be kind of the same thing. Mr. Bouchard felt that the Code Enforcement Officer had done the right thing. Mr. Belbin felt that it was done correctly.
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PEFF CORP. APPEAL continued:
Mr. Bouchard called for a vote FOR THE CODE ENFORCEMENT OFFICER’S DECISION AS BEING CORRECT. The vote was APPROVED UNANIMOUSLY.
Mr. Bouchard explained that they can talk with the Code Enforcement Officer to agree on what constitutes a change and come back, if they wish.
REQUEST FOR REHEARING: SNHS ELDERLY HOUSING VI, INC.
As there was no-one present to represent the applicant, Mr. Bouchard felt that it was only fair to postpone the decision until next month. When questioned about the time
constraint, Mr. Bouchard felt that the time constraint only applied to when they applied
for the rehearing.
L. Belbin made a MOTION, second by S. Heaney, to POSTPONE THE DECISION FOR A REQUEST FOR REHEARING TO SEPT. 2, 2008. The motion CARRIED.
COMMUNICATIONS:
Mr. Bouchard read the notice for the NH Fall Planning & Zoning Conference in Lincoln on Oct. 25th. He then read the resignation of Mike Willingham and stated that Ms. Oronato-Sullivan is now replacing him. The application form for the 21st Annual Municipal Volunteer Awards and the July/Aug. Town & City were acknowledged.
Mr. Bouchard asked the members to think about a new Vice-Chairman and we shall vote on it at the next meeting.
WORKSHOP: MICHELLE BONSTEEL
Ms. Bonsteel explained that she feels that there should be a change in the Zoning Ordinance as the section as it stands now will affect the ZBA. She was addressing Article IV, 4.12 which regulates non-conforming lots and non-conforming structures. She stated that she has 3 applications that have come in and expects more. 3 out of 4 are the result of roof collapses. One will need a variance as they wish to put in a foundation due to a water problem; one will need a variance as they wish to change the pitch of the roof due to the snow problem. Some are to enclose porches. Ms. Bonsteel stated that she has e-mailed Mr. Paradis, Chairman of the Planning Board, several times about this and he believes that the intention is not to add to anything on a non-conforming lot. She feels that it would have been better to do something with formulas. Mr. Bouchard stated that the ZBA shall have to address this on a case to case basis. He explained that a steeper roof will be a use variance. Ms. Bonsteel added that Bernie Waugh, town counsel, has told the Planning Board that the present regulation is defensible. Ms. Bonsteel’s next concern will be with the sewers. There needs to be a change to Zoning to a minimum lot in square footage.
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WORKSHOP continued:
Ms. Heaney questioned if it would be possible to have a new ordinance requiring that septic systems be inspected. Again, Mr. Bouchard stated that we shall have to take
this on a case by case basis. Screening a deck will need a variance; an expansion of use will need one. Ms. Bonsteel mentioned an example where an applicant would like to tear down a house on a non-conforming lot and build a larger house that is within the setbacks. Ms. Heaney stated that it would be less non-conforming but would not be able to meet the Shoreland Protection Act. Ms. Bonsteel stated that it requires 50’ for any structure except docks and fences.
Mr. Denning stated that septic systems and docks are a problem as no-one is looking. The State does not notify us of docks and he has recommended to the Selectmen and Town Manager that we need to investigate how to keep watch, maybe with a new hire. Ms. Bonsteel stated that, in a town that she worked in previously, she as the Code Enforcement Officer and the Assessor would go out on the lake once a year and see all the changes that had been done. They would double the cost of the permit if it was applied for after the fact. Mr. Denning thought that we might want to go back to the town attorney and ask questions. Ms. Bonsteel said that, in NY, land was more valuable than the buildings on it. Developers came in and knocked down the one house and put in three that were each 3 times large; right up to the setback lines. These were million dollar homes. They wanted revenues. She asked what we want. We could increase lot sizes and setbacks or a formula based on lot size to keep the size of the homes down. She continued to say that we need to look at the lake; what do we need to preserve it. It was always cute cottages. We need to still get revenue and to allow reasonable use. Mr. Belbin felt that we need something at the stage of people coming in for year-round homes.
With no other discussion, S. Heaney made a motion, second by L. Belbin, to adjourn at 8:33 p.m.
Respectfully submitted,
Jan Laferriere, secretary